ag 0087 (rev. 07-01) - 2017 onsc 4016
TRANSCRIPT
Appeal No. C-64103
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SUPERIOR COURT OF JUSTICE
B E T W E E N:
SVETLANA DANILOVA and PAVEL DANILOV
Plaintiffs
(Defendants by Counterclaim)
- and -
ALLA NIKITYUK and VALENTIN NIKITYUK
Defendants
(Plaintiffs by Counterclaim)
- and -
YANA SKYBIN and YOUNG MENS CRHISTIAN ASSOCIATION operating as
YMCA SIMCOE/MUSKOKA
Defendants
(Plaintiffs by Counterclaim)
P R O C E E D I N G S A T T R I A L
BEFORE THE HONOURABLE JUSTICE G. MULLIGAN
on May 20, 24 and 25, 2016 at BARRIE, Ontario
VOLUME II
APPEARANCES:
A. Chapman Counsel for the Plaintiffs
(Defendants by Counterclaim)
E. Bornmann, M. Phan and L.
Loader
Counsel for the Defendants
(Plaintiffs by Counterclaim)
A. Mae and W. Thomson Counsel for the Defendants
(Plaintiffs by Counterclaim)
(i)
Table of Contents
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SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S – V O L U M E II
May 20, 2016: Page 453
May 24, 2016: Page 612
May 25, 2016: Page 708
W I T N E S S E S
WITNESSES Examination
in-Chief
Cross-
Examination
Re-
Examination
DANILOV, Pavel 615
By Mr. Mae 453
DANILOVA, Svetlana 618
By Mr. Bornmann 772
CASPERS, Anastasia 719
By Mr. Bornmann 721
By Mr. Mae 731
CASPERS, Jan Niklas 758
By Mr. Bornmann 758
By Mr. Mae 761
Ruling 650
Ruling 657
(ii)
Table of Contents
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Legend
[sic] – indicates preceding word has been reproduced
verbatim and is not a transcription error.
(ph) – indicates preceding word has been spelled
phonetically.
Transcript Ordered: July 25, 2017
Transcript Completed: December 3, 2017, 2017
Ordering Party Notified: December 3, 2017
Danilova v. Nikityuk et al.
Pavel Danilov – Cr-ex (cont’d)
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FRIDAY, MAY 20, 2016
THE COURT: Mr. Mae, are you ready to continue?
MR. MAE: Yes I am, Your Honour.
THE COURT: Mr. Danilov.
MR. MAE: Your Honour, as we finished yesterday
you asked for an indication as to how long I
would be today. I’m still hoping to be done by
lunchtime. However, at some point during the
examination an answer provided by Mr. Danilov
with respect to certain evidence may result in
more time being needed with him. So – so I just
give fair warning of that.
THE COURT: Mr. Danilov, would you come back to
the stand please?
PAVEL DANILOV: RECALLED
CROSS-EXAMINATION BY MR. MAE (CONTINUED):
Q. Mr. Danilov, I assume we agree that on August
the 19th, 2011 your wife made a telephone call to Yana Skybin?
A. I – I don’t recall any conversation about
that so far.
Q. But are – are you aware that your wife phoned
Yana Skybin on August the 11th, 2011?
A. Yes, I am aware.
Q. Okay. But you weren’t there during the
conversation?
A. No.
Q. Okay. And we have the – the weekend of
August the 20th, 2011 where you were constructing the gazebo....
A. What specific date to....
Q. Oh the weekend of August the 20th, 2011.
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A. 20th, 2011 – was Saturday – yes.
Q. Yes. And that – that’s the weekend your
daughter and her – whether it was her fiancé or husband at the
time, they – they visited.
A. Fiancé – yes.
Q. And I understand from your evidence in-chief
that you were in the garden doing – doing the work – whatever
was necessary, you were with her and your daughter’s husband.
A. It’s but – yeah, it wasn’t the garden back
then.
Q. Okay.
A. Yes.
Q. But – but you were outside.
A. Yes.
Q. And you were aware at the time that something
was going on in the house, some discussion, argument, dispute
between the Nikityuks, your wife and your daughter was involved
in that – but you heard nothing, correct?
A. No, I wasn’t aware that there was a
discussion.
Q. But you....
A. I was outside, I knew that they all –
Svetlana and Valentin and Alla, they were inside. That’s all I
knew.
Q. So – so you have no direct input on what
happened during that discussion?
A. No.
Q. I think the answer should be yes, you have no
direct – but you – you weren’t part of it.
A. I wasn’t.
Q. And is it fair to say that you accept that on
August the 23rd, 2011, the Nikityuks went to the YMCA, met with
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Yana Skybin and made a complaint of the allegation of abuse?
A. That thing I know from the log of Yana
Skybin.
Q. And you have no evidence to suggest otherwise
that that meeting did not take place?
A. No, I don’t have evidence like that.
Q. And if I can direct you to Exhibit 3(A), Tab
1 – and I should actually....
A. I’m sorry there – there are two....
Q. I – I should say, Section A. If you see this
one, leave a tab at the front that says A...
A. A.
Q. ...so if you go to A, Tab 1.
A. Okay.
MR. BORNMANN: Sorry, Your Honour. The
interpreter has indicated that he’s having
trouble hearing the questions from counsel.
THE COURT: All right. Mr. Mae....
MR. MAE: I will try to speak louder, Your
Honour. Q. So you have the document in front of you, Mr.
Danilov?
A. Yes, I do.
Q. And you would agree that this is the log
prepared by Yana Skybin that you’ve seen in these proceedings?
A. Yes, but I – I saw two versions of that log.
I’m not sure which one is this. There is one slight difference
between them in the middle.
Q. In the middle?
A. Yes. Not in here – not here.
Q. Oh those are the extra pages that were
actually prepared by Ruth, you’ll see them at Tab 2. So on
August the 23rd, 2011, you already said that you have no
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evidence to – to deny that this meeting took place. Do you have
any evidence to suggest that the Nikityuks did not show bruises
to Yana Skybin on that day?
A. Yes, I do.
Q. And what is that evidence, sir?
A. It was in transcript of Alla Nikityuk.
Q. Oh.
A. She....
Q. That’s going to come out later on. I want to
know if you have any physical evidence that bruises were not
showing.
A. Technically yes because there were a lot of
pictures taken on the weekend of August 20, 2011. Taking them
by Valentin Nikityuk of Yana’s birthday party. And those
pictures show Alla sitting at that table with open sleeves and –
well they seem happy, there are no bruises and again Yana Skybin
confirmed in her examination – oral examination that that day
everybody at her birthday party was happy. There was nothing
special about it.
Q. Well – well, we’ll turn to that and I’ll –
I’ll actually take you to that photograph very shortly, sir.
But Yana Skybin’s log says that she was shown bruises and you
have no specific evidence that she was not shown bruises.
A. I didn’t say that.
Q. Well I’m putting....
A. I wasn’t at that meeting.
Q. Exactly, you weren’t at that meeting. So you
don’t know what was shown.
A. No.
Q. Okay. And do you accept that Alla had any
bruises at all?
A. No.
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Q. Okay. And you do not accept the possibility
that Alla had no bruises?
A. I don’t accept the possibility.
Q. Okay. You were present when Yana Skybin was
examined for discovery, correct?
A. Yes.
MR. MAE: And this – this is somewhat unusual,
Your Honour. I’m actually going to take Mr.
Danilov to a comment he made on the record during
the examination of my client. So if – if His
Honour could be shown the transcript of Yana
Skybin. And also the witness.
CLERK REGISTRAR: Exhibit 1 to the witness.
MALE VOICE FROM THE BODY OF THE COURT: You – you
don’t have one for the witness?
CLERK REGISTRAR: I have one.
MR. MAE: I believe I have two copies. If I can
have one – one moment. I do, I have two copies.
THE COURT: Okay.
MR. MAE: Is – is there a copy for His Honour?
THE COURT: Not yet.
CLERK REGISTRAR: I don’t have one.
MR. MAE: Okay, well I can give you a copy for
the witness.
THE COURT: Well the witness has one now. Now I
have one. And the date – Mr. Mae the date of
the....
MR. MAE: The examination, Your Honour, is 10th
of April 2014.
THE COURT: Thank you.
MR. MAE: Q. You recall being at that
examination Mr. Danilov?
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A. Yes, I already answered.
Q. Okay. So let’s turn to page – excuse me just
one second, I lost my page reference. Can I just have a moment,
Your Honour? My...
THE COURT: Yes.
MR. MAE: ...my formatting’s gone out on it – on
my document. Sorry. Yes Your Honour, I do apologize. Q. Let
me take you to page 107, sir. And we’re going to start....
A. One hundred and seven?
Q. One hundred and seven. This was the cross-
examination on the examination for discovery of Yana Skybin by
your former lawyer, Mr. Timokhov (ph). So if we start with
question 629 at the bottom. Mr. Timokhov (ph) says or asks,
“They were slightly visible, right?” And Yana says, “No, they
were visible. She was wearing a shirt and they were under her –
the sleeves, but if you lifted up the sleeves, you wouldn’t miss
them. They were very obvious and visible.” Question: “How did
they look like? They were from fingers or from punches - that
was one big bruise. Just describe them.” “No, it wasn’t one
bruise, it was a few bruises in maybe five centimetres range in
both arms and they were gray, yellow, green colour.” And then
there’s a comment attributed to you, sir. Would you read that
out?
A. I said to Mr. Timokhov (ph), “No, they were
old.” I wanted him to ask that question to Yana, that’s it.
Q. You – you were referring to....
A. I wasn’t under oath, right and I – I was
trying to help my lawyer to do the examination.
Q. Okay.
A. And all I have to do for him just to – to –
to make it clear were there bruises or did she see them or
didn’t she – or whatever. I knew that there were no bruises and
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I wanted my lawyer to ask that question.
Q. Well it doesn’t say that, sir. It says, “No,
they were old.”
A. It just there was no question mark there
because it was comment to my lawyer.
Q. Sir, that’s a statement, “No, they were old.”
That is a statement.
A. It – how it looks in the transcript.
Q. No, sir it was a statement, “No, they were
old.”
A. No, it was suggestion to my lawyer to ask
that question.
Q. Now I understand that the Nikityuks went to –
Alla Nikityuk went to the doctor’s on August the 22nd. Were you
aware of that?
A. I know that they were going to go to the
doctor.
Q. Okay.
A. About that - my wife might testify about
that.
Q. Okay. But do you have any knowledge or
evidence as to whether the appointment was kept?
A. Yes, I know it was kept.
Q. Okay.
A. But my wife...
Q. So...
A. ...better testify.
Q. ...who would have gone to the doctor’s with
Alla?
A. Svetlana.
Q. And she would have been there for any
consultation?
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A. Yeah.
Q. And as I understand your position in previous
communications or examinations, et cetera that you’re relying
upon the appointment of the doctor’s as also being no proof of
bruising, correct?
A. As far as understand, they didn’t complain
about any bruises.
Q. No they didn’t.
A. There were no [sic] any bruises. It’s
ridiculous.
Q. No they didn’t, but not complaining to the
doctor about a condition doesn’t mean to say it doesn’t exist,
does it?
A. Well even complaining to the doctor doesn’t
mean that they did exist.
Q. Okay. So look, I go to the doctor with a
cough and I have a large rash on my leg. I don’t tell the
doctor about the rash, I’m wearing long pants, he doesn’t see
it. Do I have a rash, yes or no?
A. I don’t know.
Q. You don’t know. Well follow me through
again, sir, you’re an intelligent man. I’m telling you I have a
rash on my leg. I go to the doctor to complain about a cough...
A. Mm-hmm.
Q. ...I’m wearing long pants.
A. Mm-hmm.
Q. So – and I don’t show the doctor my rash.
A. Mm-hmm.
Q. Do I have a rash, yes or no?
A. I don’t know.
Q. You don’t know. Okay. You can be
[indiscernible], sir.
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A. You can keep asking the same stupid question
again and again, but the answer still be the same.
Q. But it’s not – it’s not the same, sir.
THE COURT: All right. Mr. Mae, no point arguing
with the witness. I get your point.
MR. MAE: Thank you, Your Honour. Q. You still
have Yana’s log open in front of you, sir?
A. Yes, I....
Q. September the 30th, 2011 reports another
visit by Alla and Valentin Nikityuk. You have no evidence that
that consultation - that meeting did not take place, correct?
A. No, I have no such evidence.
Q. Okay. And with respect to the photo entries
in the log, the events between the 4th of October and 17th of
October which refer to various meetings, you have no evidence
that they did not take place, correct?
A. What’s the last date?
Q. The 4th to the 17th of October.
A. No, I don’t have such evidence.
Q. Okay. So let’s talk about October the 17th.
That was the day the Nikityuks left the house at Rankin Way.
A. No, it’s not – 17th you say.
Q. Yes.
A. Seventh or seventeen?
Q. Seventeen – one, seven.
A. Okay. October 17th. Yes. They – they left
house on October 17th.
Q. Okay. So you gave evidence previous as to
what happened on that day.
A. Yes.
Q. And leading up to that day, you discovered
that a bank account had been closed. Do you recall that?
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A. Bank account has been closed around...
Q. October the 4th.
A. ...the 5th – yeah maybe 4th. I – I don’t
know. I figured that out way after Nikityuks left the house
actually.
Q. Okay.
A. Well I figured out that account was closed.
I didn’t figure out who closed it because I was under impression
that some bank guy in mistake closed it and I was arguing with
this bank like all weeks – like couple weeks before October the
7th. I was really upset about that because that account was
very important. That account was for transit mortgage payments.
I was transferring to Scotiabank and I couldn’t figure out why
it’s not working. So I made many telephone calls to the bank
and was – I was arguing with them. I was – well raising my
voice with all them. They couldn’t answer why the account was
closed. Nikityuks were sitting somewhere in the kitchen and
laughing and I couldn’t figure out why they’re laughing and
later – like couple weeks after they left, we actually figured
out that it was them who closed that account.
Q. Oh you figured out after they left?
A. Yes, way after that.
Q. See that – that’s not the case at all, is it?
Your wife went to the bank on October the 17th and found out
that Nikityuks had closed the account.
A. No.
Q. Are you sure about that, sir?
A. You can ask my wife. I’m not sure what
specific date she had go to the bank actually, but it – it – it
definitely wasn’t October 17th. When Nikityuks left on October
17th it was 9:00 a.m. [sic]. Banks didn’t work at that time.
Q. Okay. Can – can the witness be shown the
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transcript of his examination of discovery? Have it in front of
you, sir?
A. Yes.
Q. I’d like you turn to page 50. So let’s start
at line 11 and I’m going to read out to you the words that were
spoken, sir. “In the beginning of October, I figured that I
don’t see that account on my online webpage and I cannot
transfer money to or from it. And I call the bank several times
and I was arguing with the banks like why you close my account,
like what the hell’s going on. Nobody could tell me exactly
what was going on. Nikityuks were sitting in the corner giggle,
you know, laughing and I couldn’t figure out what – what the
hell was going on. And a few days later we called again and
again and the account wasn’t still working. And finally on
October the 17th, Svetlana went to the branch and spoke to the
bank – bank manager. And the branch manager told Nikit – and
the bank”, so start again, “And the branch manager told the
Nikityuks closed the account on October the 5th and Svetlana
told me about that and when I asked Valentin, why’d you close
the account, he said because – because and while we started to
talk about the account and what they were for and I tried to
figure out the reason why.” So you did know on October the 17th
that they closed the account, didn’t you sir?
A. No, actually I didn’t. I – I remember that
testimony. But that specific date – well maybe back that time I
remember better, but now I’m thinking that it was way later
actually. Because we have letter from the bank which we
received, I believe, sometime in November and my impression is
that’s where I actually know it from. But you can ask my wife
about...
Q. Well...
A. ...specific date.
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Q. ...I’m asking you, sir. That’s your evidence
under oath. That’s what you said under oath.
A. I know.
Q. Now let’s look at Yana’s log.
A. Yes.
Q. The entry for October the 17th. This was
prepared well before you were examined. Let’s look at the first
line, “Got the call from A and V at night saying they are
outside because of confrontation. Daughter discovered that the
couple had closed the joint account and was very mad with them.”
A. That’s what Yan – Yana wrote in her log,
so....
Q. Wrote.
A. It’s not in even under the oath.
Q. Doesn’t matter it’s not under oath. It was
written at the time. It reflects what she was told at the time.
It reflects....
A. That’s what Nikityuks told her, not me.
Q. And that’s what you said under oath in your
transcript, sir.
A. I agree with that. Maybe at that time I
remembered better.
Q. Oh right. Selective memory.
A. Yeah. Sure.
Q. So there’s a – there’s an argument on October
the 17th and you and your wife lose it with the Nikityuks, don’t
you?
A. No.
Q. And that’s why they tried to leave. That’s
why they did leave on that evening.
A. No, they decided to leave way before that.
Q. They left on that specific evening because of
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that event, sir.
A. Not at that specific evening. They actually
got an offer from the social housing in Barrie, that’s why they
leave.
Q. They left that evening because of that
argument, sir.
A. They left that evening because they had offer
from social housing on October 17th.
Q. So you keep saying.
A. They have evidence of that.
Q. And then – and then you tried to stop them
leaving by seizing garage door opener so they couldn’t take the
car with them.
A. Yes, I wanted Valentin to return the key
because he didn’t have insurance on my car.
Q. And so two old people, 9:00 p.m. at evening
on a cold – during the fall in Innisfil where there’s no public
transport, they can’t speak English and they go – they – they
leave. That – that’s fairly significant. That – that shows
major intent on their part, doesn’t it?
A. Does what, I’m sorry?
Q. Two elderly people...
A. Mm-hmm.
Q. ...they don’t speak English...
A. Don’t speak.
Q. ...in a small town like Innisfil...
A. Mm-hmm.
Q. ...on a fall evening...
A. Mm-hmm.
Q. ...no transport – no public transport...
A. No public transport.
Q. ...they still leave.
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A. They leave – yes. Yes. They called Yana
Skybin; she arranged transportation.
Q. They also tried – tried to phone the police
as well, didn’t they?
A. I don’t think so.
Q. You gave evidence of it. You said – you said
that Valentin had...
A. He showed me the phone...
Q. ...his 9-1-1 phoned.
A. ...and was pretending that she’s [sic]
pressing some buttons and he was saying like if I press this
button police will be here right now. So like okay, press your
button.
Q. And then he had a problem with the phone,
didn’t he?
A. I don’t know.
Q. You – I believe – I believe you said that.
A. Yeah it looked that way.
Q. Okay.
A. Yes. But there were two more phones at his
disposal he could use. 9-1-1 you can dial from pretty much any
phone, even for free.
Q. But he can’t speak English can he, sir?
A. But he could speak something even if he
pressed that button, right. His address he knew. What that
phone was for, I don’t know.
Q. So you mentioned early on about photographs.
A. Mm-hmm.
Q. And I assume that you’ve heard the phrase the
camera never lies?
A. Maybe I did, maybe I don’t.
Q. Oh the photographs you’re referring to,
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you’re trying to suggest that they constitute evidence of a
general set of circumstances, correct?
A. Yes, of course.
Q. And you would agree with me sir that a
photograph shows what it sees at that moment.
A. Yes, of course.
Q. Just like a balance sheet on a trading
account, it shows you the amount in the account at close of
business.
A. Yes, of course.
Q. Yes. And so it’s fair to say that before or
after the photograph is taken, there could be a significantly
different event, correct?
A. Yes, sure.
Q. Okay. And it’s fair to say that when people
are taking family photographs, they smile in their photographs,
don’t they? That – that’s what I’ve seen in all of your
photographs. I see – I see smiles.
A. Yes, smile – sure.
Q. Yes. And....
A. Sometimes they don’t.
Q. Sometimes they don’t. Most of the time they
do. And the most popular thing that somebody says when they
pick up a camera and point it to somebody is, smile – most
people say, don’t they?
A. I don’t know what they say – said back then
at Yana’s birthday. I wasn’t there.
Q. Well I’m – I’m referring to - as well to the
photographs that you’ve put in evidence that you went through
the various photographs of the Nikityuks at....
A. For many years.
Q. Yes.
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A. Mm-hmm.
Q. Let’s look at the photograph that you refer
to Yana Skybin’s party, it’s at Tab 66 of Exhibit 1(A).
A. Sixty-six.
Q. Yes and it is on page 435. This is the
photograph of Yana Skybin’s birthday party that you’re relying
upon, sir.
A. One of them, yes.
Q. Well where’s the other one?
A. Next page I believe.
Q. Alla’s not in the other photograph on the
next page, is she?
A. Yeah, well there are several of them
actually, but only two here. Probably there – there is
something that can be attached to – to – to our first volume of
protection. But there were several photograph places – the most
important.
Q. Well let – let’s deal with the photograph
because this is the one that I’m gonna call that you’re relying
upon. And this is the photograph that you say demonstrated Alla
have no bruising, correct?
A. It probably doesn’t demonstrate that Alla has
or doesn’t have bruises, but normally – ‘cause you keep
referring to things what people do normally – so normally, if
people have bruises they don’t wear shorts or dresses like this.
Q. Are you producing any expert evidence to
support that opinion, sir?
A. Let me think. I think that question has been
asked at the examination to Yana Skybin and she already said.
Q. Not really, sir. The question was do you
have any expert....
A. No.
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Q. Okay. Right. Simple. So we look at this
photograph of Alla. Alla is the lady third in the center of the
photograph, there to the left and she’s wearing a short sleeve
t-shirt or - that’s – that’s what I would call it, correct?
A. I’m not sure what is intention, but....
Q. She’s the lady in the pink.
A. Yes.
Q. And her – her arms are exposed.
A. Yes.
Q. Yes. And the photograph’s not high
resolution, it doesn’t show the presence or absence of
bruises...
A. No.
Q. ...does it. Okay.
A. But that’s not the point.
Q. No, that is the point. It does not show...
A. No. The point...
Q. ...the presence or absence.
A. ...the point is that short sleeves - and
people don’t wear short sleeve shirts if they have bruises on
their arm...
Q. So....
A. ...normally.
Q. So you say, sir.
A. Yeah it’s my opinion and opinion of other
people.
Q. Now....
A. I don’t know what kind of expert you require
for this opinion. It’s, you know, like reasonable person would
say.
Q. Sir, this – this half of the arm – up here by
the shoulder, what – what would you call that? Would you call
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that the arm or would you call it the shoulder?
A. I think shoulder.
MR. MAE: Shoulder, okay. And for – for the
record, Your Honour, my hand was just below my
shoulder above my tricep.
THE COURT: And just while you’re at that, this
picture is taken August 20th, 2011 it looks like.
MR. MAE: That’s correct, Your Honour. That this
is a – a photograph taken at Yana Skybin’s birthday celebration.
Q. Would it be fair to say sir, that bruises may not have
started showing?
A. I’m not an expert in bruises.
Q. You’re not an expert. Okay. So let’s just
ask about your experience. You bang your leg, you bang your arm
on something, bruises occasionally come up quickly and sometimes
they don’t come up for a couple days, do they?
A. I don’t know.
Q. You don’t know. Okay. It’s possible though
to get a bump and the bruise not show for a couple of days.
A. If you say so.
Q. Okay.
A. I – I’m not an expert.
Q. Now this photograph, how did you get a hold
of it?
A. It was in photo directly of the p-drive where
Nikityuks – or Valentin specifically was downloading all the
pictures on the drive.
Q. Okay. And part of your claim against the –
my – my client and the Nikityuks is there’s some big conspiracy,
correct?
A. Yes.
Q. Would be fairly foolish wouldn’t it to put a
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photograph like this – or have it – have it taken if it says
what you think it says. It – it would be foolish, wouldn’t it,
sir?
A. What would be foolish in this case not to
take pictures of actual bruises having the camera in hands.
That would be foolish. So I’m – I’m not saying that Valentin
Nikityuk is a fraud, he is not. So the fact that he didn’t take
those pictures means that there were no bruises.
Q. Well so – so you say. He can be asked about
that. Let – let’s look at page 437.
A. Page – I’m sorry, what?
Q. Page 4-3-7.
A. Page 4-3-7.
Q. And this is another photograph from the same
birthday event from Yana Skybin’s Facebook page. You had
produced this in evidence, correct?
A. Yes.
Q. Yes. Okay. And you obtained this photograph
from the Facebook website, correct?
A. [Indiscernible]....
Q. Okay. Well when I said you – you or your
wife obtained this from Facebook. It’s – this is a screenshot.
A. Yes, sure.
Q. And we see at the top Facebook.com.
A. Yes.
Q. And it shows Alla in the photograph with Yana
and two other ladies.
A. It doesn’t show Alla.
Q. No, sorry – Valentin. Sorry, shows Valentin.
A. Yes.
Q. And then picture on page 4-3-8 – oops sorry –
different picture. So again there’s a photograph published on a
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public website...
A. Yes.
Q. ...of attendants of the birthday party.
A. It seems like that – yes – because it says on
– on the right August 21st, 2011. I suppose it’s the date when
Yana uploaded that picture to the Facebook and it looks like
it’s the next day.
Q. And then let’s look at page 438.
A. Yes.
Q. This is a picture from Yana Skybin’s Facebook
page which you downloaded it on the 25th of February, 2013
according to the headnotes, correct?
A. Again, Svet – Svetlana did that.
Q. Oh Svetlana did. And we see Valentin in the
background.
A. Yes.
Q. And you’re trying to allege some conspiracy
and you’re using this a part of your evidence, correct?
A. No it’s not evidence for conspiracy. It’s
evidence that Yana Skybin and Nikityuks were friends at that
time. And Yana Skybin, multiple times and very explicitly
denied that. So she lied under the oath.
Q. Did – did she deny that they had a social
relationship?
A. She denied that she was friends with
Nikityuks.
Q. Did she deny that she had a social
relationship, yes or no?
A. I don’t remember.
Q. Okay. Did she deny that she spent time with
the Nikityuks, yes or no?
A. No.
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Q. Okay. So she has a relationship with them,
so what of it sir?
A. Sure.
Q. Now let’s jump forward to tabs – Tab 89 of
your photograph. These are the photographs that you went
through in your evidence in-chief, correct? Well some of them.
A. Some of them, yes.
Q. And is it fair to say that when we flip
through all of these photographs – and we can look at anyone,
pick – pick one at random, very staged photographs aren’t they?
The person knows that they’re being photographed. They’re all
standing here, they’re all posed. Yes?
A. Yes.
Q. Yes.
A. They’re not actually staged. It’s like well
you sit at the table, someone take a picture, there’s nothing
staging about that.
Q. Okay.
A. It’s – it’s normal. That’s how things work.
Q. That’s right, it is normal. Camera is put in
front of everybody at an event or at a location, smile. And
that’s what all of those photographs show. Correct?
A. Correct.
Q. Okay. And would you agree with me as a
general proposition that people can be friends and then become
enemies or fallout with each other?
A. Not really – no.
Q. Oh you – you’ve – so you’ve never had a
friend that you’ve fallen out with?
A. None of my friends became my enemy. Some
people start to ignore people and avoid them, but none in my –
not in my experience though, but – yeah I suppose that might
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happen. Sure.
Q. Okay. Thank you.
A. Things happen.
Q. Yana’s birthday party was no secret was it?
A. No.
Q. You – you – you knew ahead of time that the
Nikityuks were going to Yana’s for the birthday celebration,
correct?
A. We – we knew that they were going somewhere.
Maybe Svetlana knew that they were going to Yana. I didn’t pay
attention actually – much of attention, I was busy otherwise.
Q. Okay. Well we’ll deal – we’ll deal with that
later. I’ll ask Svetlana then. But generally, the relationship
between the Nikityuks and Yana was not a secret. It was...
A. No.
Q. ...family knowledge.
A. Yes.
Q. Okay.
A. Yana was a family friend and the friend of
the entire family.
Q. Well not you, you’ve never spoken to her sir.
A. Yeah well – yes, except me probably.
Q. Okay. Can I ask you to turn to Tab 90? And
what we have is a certified translation of a number of – a
number of cards, a number of well wishes.
A. Yes.
Q. And why have you produced those, sir?
A. To prove that at least to my birthday – well
it wasn’t actually my real birthday, I had birthday on February
29th, but it was close to my birthday on 2011, I believe it was
like March 1st or something like – until – ‘till that time,
Nikityuks were happy and really appreciated what we are doing
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for them. That’s what it says like in plain words.
Q. Well let – let’s turn to page 5-6-6 for a
moment, I just – I just want to go – go through these. So the
first card, I’m looking at the English trans – translation of
course, it is at the bottom August 2000 – 2010 the first
section, correct?
A. Yes.
Q. And it – and it’s extending congratulations
on the wedding anniversary.
A. Yes.
Q. Yes. And then the next one is February 2011,
“Happy Birthday”.
A. Yes. It was the most important one – yes.
Q. And then the one below that, 3rd of August
2010, congratulations on the 8th day of March.
A. Yes, that’s for Svetlana. Yes.
Q. Yes. And then the next one is headed
“Congratulations on Anniversary of Your Wedding”.
A. Yes.
Q. And that’s – does not appear to have a date.
And then the last one is from 2008, “Happy Birthday”.
A. Well I – I know the date of that one, I
believe it was 2009 and 2008 – yes it’s happy birthday.
Q. So 2008.
A. Yes.
Q. And two things, first – firstly you – you
keep these cards – these birthday cards....
A. We keep some of them, not all of them. It’s,
you know, it’s – it’s not like very special place to – to keep
all the cards. We found what we found.
Q. But you – you don’t keep a copy of the Russia
translation of the loan agreement?
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A. Also don’t Nikityuks.
Q. And so you – you mentioned yesterday in your
evidence about your culture, big families living together - that
type of situation.
A. Yes.
Q. Is it part of your culture to give cards on
special occasions, isn’t it?
A. Yes.
Q. Yes. So that’s all these cards show, they’re
on special occasion. Well wishes were being conveyed.
A. I’m sorry what is the question?
Q. These cards just show that well wishes or
congratulations are being conveyed on those events.
A. Yes, sure.
Q. And that – that’s what polite people do.
A. Yes, sure.
Q. Okay.
A. Polite, normal, reasonable people, family
people, people who appreciate each other, people who – you know,
happy with each other. If – if you are not happy living with
some person you don’t send them cards.
Q. So – so you say. So as I understand your
case against my client, your allegation is that Yana Skybin put
the Nikityuks up to all of this.
A. Not really, but yes – in the most part, yes.
Q. Well what – what you mean not really? That’s
what I understand your case to be.
A. It – it all came together actually.
Nikityuks wanted to live in Social Housing, they were looking
for a ways [sic] to do that and Yana Skybin actually - she get
out the – the way for them.
Q. So....
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A. And starting from that point it became a
conspiracy because we didn’t know anything about that.
Q. So you’re not saying that she put the idea of
Social Housing in their heads?
A. Well that I’m not sure because it looks like
Yana Skybin actually – well, arranged some meeting in Toronto
for Nikityuks with people who lived in Social Housing and
Nikityuks liked the idea. But she probably didn’t put the idea
of Social Housing in their heads, but once they expressed the
interest in it, she figure out a way.
Q. So you – so you say. You have no direct
evidence of that though do you?
A. Direct evidence.
Q. Yeah.
A. You knew it’s like this, common.
Q. Yeah you – you weren’t there, you have no
other witness who can support that.
A. Support what exactly?
Q. What – what you believe the situation was.
You don’t have a third witness who sat in the room during those
alleged discussions, do you?
A. Well Nikityuks have make it sound all that at
their examination.
Q. Well they will – they will deal with that.
You do not have a witness do you?
A. Nikityuks are witnesses.
Q. No, you do not have a witness.
A. No.
Q. Okay. And you – you mentioned people in
Toronto and as I understand your – your evidence that at some
stage in April 2011 onwards, the Nikityuks at some stage say you
need to speak to Yana, Yana knows all about this. That – that’s
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your evidence, isn’t it?
A. It was in summer, not in April.
Q. But – but that’s your – that’s your evidence,
isn’t it?
A. It’s my wife’s evidence.
Q. And you mentioned that the Nikityuk had
friends, met people in Toronto, correct?
A. Yes.
Q. So – so you accept that as a fact.
A. I believe it to be true.
Q. Okay. So if the Nikityuks were using Yana’s
name – if and I’m not saying they were, if they were using
Yana’s name, maybe it was to give some credibility to what they
wanted to achieve? Do you follow all that, sir?
A. No.
Q. You don’t believe that.
A. It was – it was different. See we were
explaining them all summer and before that and even later that
they’re not eligible for Social Housing. But it contradicted
what Yana was saying then at the same time and they accepted
Yana’s suggestions, not ours because they considered her that –
she was like a professional of some kind and we are just idiots
who live in Canada for – for many years and so many mistakes.
Q. Well assuming....
A. That’s what the conversations were about.
Q. Yeah, assuming that to be correct – and I’m
not saying it was, isn’t it possible that they just used Yana’s
name to add weight to what they were saying?
A. No they were trying to involve us in this
thing.
Q. Well you have no direct evidence that Yana
Skybin advised them to do anything fraudulent, correct?
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A. I’m not sure what is direct evidence in this
case? I’m thinking.
Q. Okay. Yeah – let’s break this down. You
were not involved in any of those discussions, correct - those
alleged discussions?
A. Discussions about Social Housing?
Q. With – with Yana Skybin.
A. With Yana Skybin, no.
Q. Okay.
A. But with Nikityuks, I was involved in some.
Q. And you have no witness who was involved in
any of those discussions with Yana and the Nikityuks, correct?
A. I don’t.
Q. Well when I say...
A. But my wife might know about that.
Q. ...when I say you, I’m talking the collective
you now. I’m talking you and your wife.
A. You should ask my wife...
Q. All right.
A. ...because she might know about someone.
Q. Well I’ve seen your witness list and there’s
nobody on it.
A. Okay.
Q. And you – you will agree with me sir that the
Nikityuks found out about Social Housing from other people –
other – other than the YMCA, correct?
A. I believe it to be true.
Q. Now when these discussions - these alleged
discussions were ongoing during the summer of 2011, it’s fair to
say that you or your wife had Yana Skybin’s contact details,
correct?
A. Yes.
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Q. Yes. Didn’t pick up the phone and call her
did you...
A. Svetlana...
Q. ...to talk to her?
A. ...did.
Q. Well we’ll – we’ll come to that. I’m gonna
deal with that. Svetlana had some discussion that I believe
you’re referring to of August the 19th – or that we – we dealt
with earlier on, correct?
A. If it was 19th then yes...
Q. It was.
A. ...Svetlana knows better.
Q. But you didn’t pick up the phone and call
Yana, to say what – what’s going on?
A. There were many conversations with many
people. But see I – I personally didn’t call Yana like ever...
Q. Okay.
A. ...but my wife might. You should ask her.
Q. Your wife might – okay. And to your
knowledge, neither you nor your wife picked up the phone to call
the YMCA to complain, correct?
A. Again, you should ask my wife. I never
called YMCA myself...
Q. No.
A. ...except one time when I called Susan Green.
Q. And neither of you spoke to any family
members or family friends to speak to the Nikityuks, correct?
A. All family members of Nikityuks are in
Russia. It’s surprise for me that Yana Skybin is next of kin
for them.
Q. Well – but didn’t Valentin’s daughter visit
in August 2011?
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A. Yes. That daughter lives in Russia.
Q. But she visited.
A. Yes.
Q. And she was at your house for several weeks.
And so you didn’t speak with her, you didn’t say, hey your
parents are on some crazy idea of going into Social Housing that
we’re disgusted with, have a word with them. You didn’t did
you?
A. During that visit Nikityuks didn’t actually
speak about Social Housing, they were occupied otherwise by
entertaining Valentin’s daughter. But all those discussions
they renewed with like, you know, enforced strengths right after
she left.
Q. So it wasn’t discussed, was it?
A. Discussed what?
Q. With – with her daughter – with Valentin’s
daughter?
A. We didn’t discuss that.
Q. Okay.
A. But Nikityuks I think might - I don’t know.
Q. Well you don’t know.
A. With – with her daughter, no it – it wasn’t
discussed.
Q. And....
A. And – and why it should be discussed with –
with Valentin’s daughter, I don’t understand the point like –
what – what you’re trying to figure out here. I might – I might
help you.
Q. No. You – you’ve already helped enough.
Thank you, sir.
A. Okay. Great.
Q. You have no documentary evidence that Yana
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had any discussions with Social Housing with the Nikityuks prior
to August 2011, correct?
A. I think you should go through all of that
with my wife because she might know better.
Q. I – I – I’m finding it quite strange that
every time I ask you a very simple question that you obviously
know the answer to, you’re deferring everything to your wife,
who has sat in the courtroom...
A. Because...
Q. ...and hearing all of this.
A. ...yes – sure because she will give you much
better testimony about that than me.
Q. I’m asking you, sir. Do you have any
documentation to show – to support your position that Yana
Skybin discussed Social Housing with the Nikityuks prior to
August 2011?
A. I don’t think so.
Q. Okay.
A. But there were a lot of verbal discussions
about it.
Q. Do you have any documentary evidence to
support your case that Yana Skybin encouraged your par – the
Nikityuks to interfere with their contract with you – their
agreement?
A. Verbal statements of Nikityuks.
Q. So there are no documents?
A. There were a lot of emails, but we need to go
through them carefully. There may be some clue, but I’m not
sure at this point because those were emails between Svetlana
and Yana and Nikityuks and Yana.
Q. And the verbal statements were – we’ll deal
with the emails. The verbal statement, you’re referring to your
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discussions with the Nikityuks that you say took place.
A. Yes.
Q. Okay. And you have no evidence whatsoever
that Yana Skybin influenced the Nikityuks to do what they did?
A. I have a big picture.
Q. Sorry?
A. You can look at her log and you’ll see the
big picture.
Q. Well we can go through the log every entry if
you want. We – we can do that, sir.
A. Will do.
Q. Okay.
A. I mean not now.
Q. No – no – no – no. You want to do that sir,
let’s do it. It’s your case. Let’s go through the log. That’s
going to....
A. You’re going to go through the log right now
for every entry?
Q. I’m gonna go through the log with you right
now, sir.
A. To waste time or for what?
Q. No, sir. You – you said this – the – there’s
evidence in the log that she....
A. Yana Skybin will be testifying, right? Yana
Skybin will be testifying here?
THE COURT: This is not your opportunity to ask
questions of Mr. Mae. It’s your opportunity to
ask – to answer his questions. Mr. Mae, would it
be simpler if you went through the log and draw
to our attention those issues that you feel are
important?
MR. MAE: I...
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THE COURT: As opposed to line by line and that
will assist?
MR. MAE: ...I believe that will be appropriate.
THE COURT: And should we give a few minutes to
look it over?
MR. MAE: [Indiscernible], Your Honour.
THE COURT: Would that make sense to – ‘cause
there’s quite a few pages here.
MR. MAE: There – there are and it’s Exhibit
3(A)(1).
THE COURT: Now does he have a working copy that
you could mark up?
MR. MAE: That I’m not sure about, Your Honour.
But I – I – I am happy to give him some post it
notes so he could flag the pages for....
THE COURT: Or maybe his counsel has another
copy?
MS. CHAPMAN: I believe that we would have
another copy.
THE COURT: So he can post it note it or
highlight it, whatever he wishes. So maybe we
should take a brief adjournment and give him that
opportunity. Maybe this is a good time to take a
– an earlier morning break with 15, 20 minutes.
The witness can go through there to highlight
those he wants to bring to the Court’s attention.
MR. MAE: Certainly, Your Honour.
THE COURT: That may save us some time ultimately
MR. MAE: And one thing I will say, Your Honour,
this is one of the documents in the request to
admit authenticity and I handed up. So I just
draw the Court’s attention to that.
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THE COURT: All right. So we will adjourn for
about 15 minutes or longer if Mr. Nikityuk [sic]
needs more time.
MR. MAE: Mr. Danilov.
THE COURT: Sorry, Mr. Danilov. Sorry.
R E C E S S
U P O N R E S U M I N G :
THE COURT: Yes, Mr. Danilov, you may return. So
Mr. Danilov, did you have sufficient time to look
through your logs?
A. Well yes, Your Honour.
THE COURT: All right. Mr. Mae, you – I think
your question was what evidence there was in the
logs that she – that Yalana [sic] Skybin
encouraged – yes, is that the question?
MR. MAE: That was the question, Your Honour.
A. I believe we were talking about conspiracy,
am I right?
MR. MAE: Q. We were indeed.
A. Okay. So let’s look then – you – you want me
to go so findings right – or you were asking questions on
how....
Q. You had the opportunity during the break to
go through the log to flag and highlight the entries that you
say show evidence of a conspiracy.
A. Okay. So it’s kind of my version of this
started then and....
Q. Well I’m sure it’s your version, sir.
A. Yes and I will explain that version with your
permission.
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Q. You don’t need my permission, I’m waiting
sir.
A. Okay. So let’s look at that famous record of
August 23. So what it says, “Alla and Valentin came to see me
in my office. They ask for information about subsidized
housing.” Then....
Q. Read the rest of the sentence, sir.
A. “As they need to separate from their daughter
and son-in-law.” Okay I’ll read faster then. “I explained the
sponsorship requirements and the waitlist for subsidized
housing. They said the atmosphere at home is unbearable. The
daughter yells at them and attacked Alla. She showed me her
bruises.” Imagine at the meeting that there were no bruises and
we will be able to prove that which is unusual by the way. And
that’s what Nikityuks were counted [sic] on that we won’t be
able to prove that there were not any bruises. But imagine for
a minute that we will be able to. So you imagine that there
were no bruises.
Q. Well we – we can imagine it’s all your
imagination, but continue.
A. And imagine that there are no bruises. So
from this perspective, let’s go and read further. “She showed
me her bruises” – but there were no bruises. “The son-in-law
yells at them too and throw plates at them that ended up making
holes in the wall in living room.” Let’s forget about that for
a minute. “There were signs of distress and fear in their eyes
and voices.” Yeah okay, Alla, she – she’s a good actress, I
suppose. Okay. “Alla started to cry, she said the daughter is
telling her she is crazy and depressed. Alla and Valentin spoke
up when their granddaughter visited last time.” Well
granddaughter is very important. “Their granddaughter was
shocked to discover what was going on in the family. She spoke
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with the parents that told Alla and Valentin things will improve
begging them to give it a try.” And the timeframe she’s
speaking about here and it’s actually a – can be figured out
more accurate from her support letter which is somewhere in the
case too. There was support letter to Social – for internal
review to Social Assistance or something like that – to whom it
may concern or – it has been widely used after that. There is
actually specific reference to the weekend before, so it’s visit
of last time – that visit of last time. It was weekend before
August 23rd and that’s when our granddaughter visited. And our
granddaughter visited us approximately once in a month. It was
kind of regular schedule. And she remembers and she will
testify....
Q. Well sir, I’m – I’m – I hasten to interrupt
you, but so – so far I’ve not heard you say why is this evidence
of a conspiracy.
A. Let me continue. We – we imagining – we
imaging here that there were no bruises.
Q. No, you’re imagining.
A. You – you remember that. Hypothetically
speaking there are no bruises. And she – reference to my – to
my daughter, Anastasia, Alla’s granddaughter, who was visiting
at the weekend before and my – my – my daughter she remembers
that weekend. It – it was a very memorable – memorable event
for the family. Well you asked me, so – so I’m explaining you
my evidence. And my daughter will testify that there were no
bruises, so that hypothetically speaking there were no bruises
becomes some kind of a fact after that. And – okay
hypothetically speaking, if there are no bruises – but Yana
Skybin keeps saying that she saw them, how she could see the
bruises which didn’t exist? And we actually have hated them so
bad that she didn’t see that – Alla Nikityuk admitted that -
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that she didn’t show Yana any bruises and actually – at the oral
examination. And actually Yana admits herself that she didn’t –
she doesn’t remember, then she didn’t see, then maybe she saw,
maybe she didn’t. But here it says very confident of the oral
examination that at her birthday, when Anastasia was visiting
same day and birthday celebration was in afternoon – and they
returned after that and there were no bruises on Saturday and
there were no bruises on Sunday. But see what’s interesting
here actually, that the entire Nikityuks case there is all this
abuse thing is like a huge bubble built on those bruises which
didn’t exist. And then it starts all – all here like all this
huge log with all this stuff. Yana’s there, Yana’s this – she’s
translator, she’s not translator sometime, she’s interpreter
from Russian to Russian I suppose when she speaks the Russian
pension fund in Russia for example. So she’s everywhere. And
what’s interesting here is that she knew that there were no
bruises because she couldn’t see them. They didn’t exist and
we’ll prove that. And if she knew that there were no bruises,
then it’s all conspiracy. You must agree, sir.
Q. I don’t have to agree to anything.
A. Because she knew that it’s – there were no
bruises. She knew that very well. And it’s all matters. Okay,
let’s go further.
THE COURT: Just for the record, for the benefit
of the reporter, sometimes the witness is giving
his own words and sometimes words from the log,
so...
MR. MAE: That’s correct, Your Honour.
THE COURT: ...if the reporter has a copy of this
later, she’ll be able to distinguish his evidence
versus what he’s reading to the court.
MR. MAE: Certain – certainly, Your Honour.
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THE COURT: Do you understand that, sir?
A. I understand.
THE COURT: Thank you.
A. Let’s go further to September the 30th, 2011.
One month – more than one month after the – those bruises which
didn’t exist hypothetically. “Alla and Valentin came back to my
office saying things have gotten worse and peace didn’t last.
The abuse is ongoing and they can’t live like that. They are
now hiding in their rooms and come out only when the daughter
and son-in-law are not around.” Okay. One month things gotten
worse. How much worse they can get? Can you give me any
detail? Like they already have bruises, right. So someone –
someone hurt them. They already had bruises. So – so month
after that, things got worse. How much worse? Can give any
detail? I already – I already threw – threw plates on the wall.
They already had bruises the month before. So on September the
30th, she writes in her log, “Things got worse.” What somebody
got killed or what? How much worse things could get? There are
no [sic] any details over there. There are no [sic] any details
anywhere...
Q. And how is....
A. ...because there were no [sic] any details.
These things never happened. That’s the point. This is a big,
big bubble built on those bruises which never existed.
Q. And how is that evidence...
A. And she knew...
Q. ...of....
A. ...that those bruises never existed.
Q. Now number one, sir....
A. And that’s conspiracy.
Q. Number one sir, you don’t know what Yana saw,
do you? You do not know.
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A. I know from her log.
Q. Well her log says she saw bruises.
A. Right. But I know that she didn’t because
bruises never existed.
Q. So – so you keep saying, sir. So you keep
saying. So how – how is that...
A. This is the central point...
Q. ...that....
A. ...of all this case, that bruises never
existed and we are going to prove that. Nikityuks never
expected that. Yana Skybin never expected that, but we are able
to prove that.
Q. How is that evidence of a conspiracy? Where
does it say in any of those entries, we conspire, we made up a
story? Where does it say that? It doesn’t.
A. Have you ever in any case have such kind of
evidence of conspiracy? It’s obvious, sir. She knew that those
bruises never existed, but she confirms that they existed and
she keeps saying that all over the place. She keep defaming us
all over the place. And those bruises never existed.
Q. So you keep saying, sir.
A. That’s – that’s – that’s the fact, actually.
Q. So you keep saying. Where – where’s your
evidence, sir? Any – anything else in the logs?
A. You will see the evidence.
Q. Anything else in the logs, sir?
A. Oral log actually confirms all this
conspiracy because this is the central point, the events of
August the 20th. And what’s interesting actually here, that –
see evening, arrived after her birthday, she sends email to
Nikityuks, “Thank you for such valuable gift. You are so
generous persons.” And it’s August the 20th. And guess what,
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three days later they come for appointment for Social Housing
and alleged bruises. Well my version of this thing is like well
guys I appreciate your gift, I will do what I can. Come on
August 23rd, I’ll explain you what you have to do.
Q. So that – so that’s your – you say your
version.
A. Yes.
Q. That’s your....
A. That’s my version – yes.
Q. So that’s speculation, isn’t it? There’s no
evidence about that.
A. Not really because she knew...
Q. Okay.
A. ...that there were no bruises.
Q. So you keep saying. She says otherwise and
so do Nikityuks.
A. It’s not just me who keeps saying that.
There will be other witnesses.
Q. Really?
A. Yes.
Q. Which witnesses, sir?
A. Two of them are coming from Germany. They
will be here on Wednesday. You will have a chance to cross-
examine them.
Q. Oh your daughter and son-in-law. That’s
right.
A. Yes, exactly.
Q. Okay. So that’s what – have you finished
with the log?
A. Yes, I am.
Q. Okay. Thank you for that. So you have no
witnesses to support your position that Yana Skybin put the idea
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of all these things in the Nikityuks’ head, correct?
A. I just explained why I do.
Q. Well – no. Let’s – let’s break that down
again. You’re not going to produce a witness that is going to
say...
A. That there were no bruises.
Q. ...that I was in the room when Yana Skybin
was talking to the Nikityuks and all of this is a conspiracy.
A. Common. You – you...
Q. No. The Court needs to hear it, sir.
A. ...you – you should be logical too. Yana
Skybin says that on August 20th my daughter saw the bruises.
That’s what she says in her record. Look August 23rd, that’s
what she says. But my daughter will testify that she didn’t see
those bruises.
Q. Sir, the source of that information in the
log came from the Nikityuks. Yana wasn’t at your house, was
she?
A. No, I believe they met at her office.
Q. Okay. So Yana is reporting what was reported
to her by the Nikityuks. Do you accept that?
A. No, she positions herself as an eyewitness of
those bruises which never existed. That’s the point.
Q. We’re gonna keep going round in circles here,
so let’s....
A. And she positions as eyewitness of bruises
which never existed everywhere to all people, to many
organizations, to lawyers, to everybody – that’s mad.
Q. This log sir, it’s a report of the event on
that day. Clearly it shows what Yana saw herself and clearly
shows what she was told.
A. Yes, she will help to explain how she saw the
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bruises which never existed.
Q. She will, sir.
A. Okay.
Q. Let’s – let’s move on.
A. Let’s move on. Thank you.
Q. You have no evidence that Yana Skybin knew
about the Nikityuks’ finances prior to August 2011, correct?
A. You should ask my wife about that because
she...
Q. Oh.
A. ...communicated with Yana a lot and I believe
there was some communication in 2009 when Svetlana told Yana
actually about that.
Q. Well I will deal with that with your wife
then. But again, whenever I ask you a difficult question you
defer to your wife who sat there hearing your evidence.
A. Because you know that I didn’t communicate
with Yana. You should not ask me questions about Yana. I know
very little about that and it is all hearsay.
Q. But I’m asking about your evidence now in
your case. You are the plaintiff, you are bringing this case.
I’m asking....
A. My wife is also the plaintiff.
Q. I know she is, sir. But you have no
documented evidence that Yana knew specifically about the terms
of the financial arrangements between you and the Nikityuks,
correct? Yes or no?
A. I don’t and one of the reasons for that
probably is that Yana didn’t produce undertaking, number one.
She testified at the oral examination that there were a lot of
handwritten notes of her – of communications between Svetlana
and her in the period from 2009 ‘till 2011.
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Q. She didn’t testify that, sir.
A. She did.
Q. She did not, sir.
A. Well I can refer you to the transcript.
Q. She did not and you’re counsel will have the
opportunity of putting that to Yana.
A. Yes, thank you. So she testified that and
she said that those written notes actually never overlapped with
the notes in the doc [sic] file in the log we are talking about.
And there were many of them in the period from 2009 to 2011.
And she undertook to produce those. But she never did and I
believe she didn’t do that because she was instructed by her
supervisors to destroy them.
Q. So you say, sir.
A. And in those notes – in those notes I am
pretty sure there were some notes about conversations with
Svetlana and what actually they were talking about.
Q. Okay. So you say, sir. That’s speculation
on your part.
A. Well....
Q. It is speculation on your part, yes or no?
A. It’s – it’s – of course it’s speculation.
Q. Okay.
A. But only because they destroyed evidence.
Q. Let’s move on. I’m gonna take you to
paragraph 20 of your statement of claim. It’s in the Trial
Record.
A. I’m sorry what – what tab?
Q. It’s Tab 1 of the Trial Record.
A. Mm-hmm.
Q. It’s your amended statement of claim.
A. Okay.
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Q. And it’s paragraph 20, you allege that Yana
Skybin had received expensive gifts from the parents in breach
of their duties and responsibility as a YMCA employee. What
evidence do you have to support that, sir?
A. Email from her to Svetlana’s parents.
Q. Oh the email that thanked – thanks the
Nikityuks for the birthday gift?
A. Yes. And it was so valuable that she
expressed her profound gratitude for such [indiscernible] –
valuable gift and she said that Nikityuks are very generous
persons. And – well did she send those emails to Alla in days
of her birthday.
Q. Let’s – let’s find that email, sir.
A. Let’s. It’s email in Russian translated by
the way.
Q. Yes and it’s in your productions at Tab 65.
Exhibit 1(A), Your Honour, Tab 65. And it’s at page 422, the
English translation.
A. Four hundred and twenty-two.
Q. Four hundred and twenty-two.
A. Yes.
Q. And it’s the email marked number 17, dated
August the 20th, 2011. That’s the email you’re referring to,
sir?
A. Yes.
Q. And....
A. Actually I’m referring to the Russian
original, but this is the translation.
Q. And this is a certified translation that
you’ve produced.
A. Yes.
Q. And the email says, “Valentin and Alla, let
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me express a profound gratitude that you have come as well as
for your precious gift. You are very generous persons. Thank
you very much. Here is the link to [indiscernible].” And
there’s a link to Cirque du Soleil. That’s the email. Okay.
So that’s an email sent by Yana Skybin after the birthday party,
correct?
A. Yes. Correct.
Q. And at the birthday party, she was given a
birthday present by the Nikityuks, correct?
A. Correct.
Q. And she sent them....
A. Nikityuks – Nikityuks by the way said at
examination that they never gave Yana any presents.
Q. No, she’s thanking them for – that’s what the
Nikityuks say, maybe they don’t remember. Who knows?
A. Who knows?
Q. But she’s thanking them for a birthday
present.
A. Yes.
Q. And you’re aware that Yana Skybin’s evidence
is that she had $50 in a – in a card – a birthday card.
A. Yes and she said that it was collective gift
from five people attending – or four people attending her
birthday. But – well she didn’t send the same email or whatever
it is to other people.
Q. How – how do you know?
A. Well she would produce by that point if – if
she did. So...
Q. No, sir.
A. ...maybe – maybe she should.
Q. No.
A. And another thing is, if it’s a $50 gift card
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and it’s splitted [sic] between five people, do you actually
believe that she can call $10 gift generous? Like you are very
generous persons she says. And translation here – well....
Q. The word is bulshoy (ph), isn’t it? The word
in the original...
A. Yes. Yeah.
Q. ...is bulshoy (ph).
A. Yeah the literal translation is big.
Q. That’s correct.
A. Or valuable.
Q. That’s right.
A. Or expensive. Yes.
Q. Yes. And you can’t except for one moment can
you sir....
A. Ten dollars – no.
Q. It can be a big gift to some – somebody who
has no money to give, correct sir?
A. At that point Nikityuks had money.
Q. Well....
A. They just withdraw $300 from their....
Q. Three – three hundred dollars?
A. Couple days before.
Q. Do you want to rethink that? Do you want to
rethink that...
A. Rethink what?
Q. ...before we go to your transcript?
A. Rethink what?
Q. Do you want to rethink that $300?
A. Rethink what exactly?
Q. The amount that you – the evidence you just
gave.
A. Yeah. See you better ask my wife about that
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because she withdrew that money.
Q. More like a hundred dollars, wasn’t it?
A. I don’t remember.
Q. You don’t remember.
A. No.
Q. But your wife will remember.
A. Yes.
Q. Okay. So let’s just assume for one moment
the Nikityuks gave Yana a $300 gift, what does that tell us?
Nothing at all. That they’re generous people.
A. It – well....
Q. Let’s just assume that for a second.
A. Oh yes assume that and you know three days
later they come to her office and allege all that abuse –
common. It’s stinky, you can see that right?
Q. No, sir. You have no evidence whatsoever as
to what was given to Yana on her birthday other than what’s been
provided in these proceedings. Simple yes or no. Yes or no?
A. Yes.
Q. Yes that you have no evidence, you agree?
A. I have no evidence and there are
contradicting testimonials about that gift – very contradicting.
Q. All – all you have is suspicion.
A. Oh yeah – sure.
Q. That’s all you have is suspicion. Okay. And
you have no evidence whatsoever that the Nikityuks offered any
form of compensation or gift to Yana Skybin for helping – for
her assistance with their housing situation, correct?
A. Correct.
Q. Okay. And you have no evidence whatsoever
that Yana Skybin asked them for anything, correct?
A. My wife will testify about that. She was
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communicating with Yana and...
Q. Well let me ask you....
A. ...mostly with her parents.
Q. Sir, you know what your wife knows. She
knows what you know. She’s in the court. You’ve been dealing
with this case for five years. I’ll ask the question again.
You have no evidence whatsoever that Yana requested anything
from the Nikityuks, yes or no?
A. I personally don’t.
Q. Okay. And you have no evidence whatsoever
that Yana received anything from the Nikityuks other than that
birthday gift and some chocolates at some time or other,
correct?
A. Or some big raise or something else.
Q. Or something....
A. There – there were a lot of – a lot of
versions of those gifts and well – Nikityuks told that they
didn’t give her anything ever. So....
Q. Okay. Great. And when the Nikityuks removed
your wife as their Power of Attorney after they left your house
– or left the house, I should say to be correct, when the Powers
of Attorney were changed, they didn’t appoint Yana Skybin, did
they?
A. Alla said they did.
Q. Well if Alla said they did – should we just
look at the Powers of Attorney to see who they appointed?
A. I don’t have those, but...
Q. But....
A. ...but Alla said that they gave Yana Power of
Attorney...
Q. Well....
A. ...that’s where I base my, you know....
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Q. Okay. Well let’s – let’s actually look at
the Power of Attorney. If we can go to Exhibit 3, volume 1 –
the green one, yes. And I’m going to take you – if you go to
the big green letter B and it – within that subtab, let’s go to
Tab 19. Do you have that in front of you, sir?
A. Yes.
Q. And that’s a Power of Attorney for Personal
Care executed by Alla Nikityuk on October the 19th, 2011. You
see that?
A. Yes, it is – sure.
Q. And if you look at paragraph 1, who’s
appointed as their Attorney?
A. Valentin Nikityuk.
Q. Okay. Let’s go to Tab 20. And this is a
Power of Attorney executed by Valentin Nikityuk also on October
the 19th, 2011. You see that?
A. Yes and it’s Alla Nikityuk. Yes, I see that.
Q. Yes, so they’ve appointed each other.
A. Yes. But it’s not in use. Yeah – we – we –
we read all over those – of those Power of Attorneys. But it
doesn’t mean that...
Q. Okay.
A. ...others don’t exist.
Q. So you’re just guessing then.
A. No.
Q. You’re just guessing.
A. Alla Nikityuk said at oral examination that
they gave Yana Power of Attorney. I’m not guessing.
Q. There – there – well there is no Power of
Attorney is there?
A. We’re talking about different things.
Q. No. There is not a physical Power of
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Attorney, is there?
A. I don’t understand the question. We’re – you
are talking about Power of Attorneys when Nikityuks appointed
each other. But Alla Nikityuk at the examination said that they
gave Power of Attorney to Yana.
Q. Well your counsel can ask her.
A. That’s all that what I know about that Power
of Attorney...
Q. Okay.
A. ...to Yana.
Q. Okay.
A. Alla Nikityuk said at examination - but
testimonial under the oath of examination as an exhibit right or
evidence or whatever. It’s considered evidence.
Q. Those Power of Attorneys, they appoint each
other. Simple.
A. With – with this. Yes I agree. Sure.
Q. Okay. Okay.
THE COURT: Mr. Mae, just to be clear, that was
Power of Attorney for care, right? You – you
were telling me.
MR. MAE: Those – those are the Power of
Attorneys that were issued.
THE COURT: For care or are they for property or
both. I didn’t....
MR. MAE: Oh they – there may be one other, Your
Honour.
THE COURT: It says personal care.
MR. MAE: Those – those are the Power of
Attorneys that we were provided with, Your
Honour.
THE COURT: All right. They’re Powers of
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Attorney for personal care just to be –
distinguish them from...
MR. MAE: Yes, Your Honour.
THE COURT: ...Powers of Attorney for property.
MR. MAE: Your – Your Honour, there may be
another one that – if somebody is looking for that, we’ll sort
of go back to it when it’s located, Your Honour. Q. And as I
understand it, your position is that you figured out that when
Yana was named as next of kin for Social Assistance that you
figured out that she had some financial interests. That –
that’s what you believed, correct?
A. It’s – it’s one of the interesting facts,
that’s it. It’s nothing to do with financial interest; I know
what next of kin means. And there are a lot of issues with that
next of kin thing...
Q. Okay.
A. ...actually. Financial interest is one of
them.
MR. MAE: Sorry, Your Honour – if we go back to
those tabs, they were hiding in plain sight. If
you go to Tab 20 and you go two pages in, there
are the continuing Powers of Attorney – both in
Tabs 21 and – sorry 20 and 21.
THE COURT: All right. So that covers Power of
Attorney for the property. And once again they
are appointing each other. Is that – that’s what
these tell us?
MR. MAE: Yes.
THE COURT: All dated on October 19th. All
right. Thank you.
MR. MAE: Q. So sorry for interrupting you
there, Mr. Danilov, but I think I put to you that – well you
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believe that when you saw that Yana was named as next of kin on
the application for Social Assistance, I put it to you that you
figured out in your mind that she had a financial interest. And
you said....
A. Next of kin thing in application of the
Social Assistance raises a lot of issues and financial interest
as well.
Q. So – so you say.
A. Yes.
Q. So you say. But you have no evidence to
support that, do you?
A. We have application.
Q. Oh you have the application.
A. Yes. That’s the evidence.
Q. That’s – that’s your – some sort of evidence.
Okay. Other than what you’ve seen in the productions, you have
no evidence that Yana Skybin advised the Nikityuks to apply for
Social Assistance, correct?
A. Other than what we see in productions – yes,
that’s correct.
Q. When the steps taken by the YMCA after the
report of the assault, you accept that they reported – referred
Alla and Valentin Nikityuk to the housing shelter. You accept
that, don’t you?
A. To housing shelter?
Q. Yes.
A. Depends on definition of slower – of – of
their – of the word referral because I – I think – like my – my
opinion is that they did much more than just referral.
Q. Well YMCA – let’s deal – let’s break this
down into bite sized pieces, okay.
A. Yes, please.
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Q. We know from the document – hey this is part
of your case sir, that the YMCA referred the Nikityuks to the
housing shelter. They did, correct?
A. They did, but again at that point, Yana
Skybin positions herself as an eyewitness of abuse. It’s not
just referral, it’s much more than that. Because Dorothy
Archer, who was actually dealing with Nikityuks....
Q. And – and Dorothy Archer is at the shelter.
A. She is a shelter lady – yes.
Q. Okay. And she....
A. She – she didn’t actually see anything. She
is not a witness. Everything she will be testifying will be
based on Yana Skybin’s words where she, as YMCA Settlement
consult, positions herself as an eyewitness of events which
never happened.
Q. Okay. Let’s go back because these are simple
yes or no questions. YMCA, Yana Skybin referred the Nikityuks
to the housing shelter, yes or no? Yes, isn’t it?
A. Yes.
Q. Okay. And the Nikityuks were also referred
to Victim’s Crisis – that’s where they got the telephone,
correct?
A. I’m not sure about exact name of
organization, but they were, as you put it, referred I think to
20 or 30 of them.
Q. Yes. And also, Yana Skybin referred the
Nikityuks to legal counsel, correct?
A. To six or seven of them.
Q. Yes.
A. Yes.
Q. But she referred them to legal counsel.
A. Yes and again, every time she positions
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herself as an eyewitness of events which never happened. It’s
not just a referral.
Q. They were proper steps to take, weren’t they?
Refer....
A. Not if you position yourself as an eyewitness
of events which never happened.
Q. So an – an eyewitness of events cannot refer
the victim of abuse to the necessary authorities for protection?
A. It’s malice.
Q. That’s malice?
A. Yes. She can refer to the lawyer then – yes
of course. But when she says that turning off Russian T.V.
programming is financial robbery to that lawyer, it’s malice.
Q. Do you not accept that everything Yana Skybin
said to the third party agencies was based upon what the
Nikityuks told her?
A. No, it was other way around. It was
Nikityuks told everyone what – how Yana Skybin actually told
them to tell and we have evidence of that.
Q. Well what evidence? I have not seen any
evidence.
A. She provided them the – the...
Q. No – no – no answer my question, sir.
A. ...abuse – abuse brochure. It’s in her log.
Q. She gave – she gave them a brochure on elder
abuse, correct?
A. Yes.
Q. Okay. We know that she did that. Tell me
again, what’s this evidence that you have that Yana Skybin told
them what to do?
A. She gave them the brochures and I suppose she
said look at that brochure, come in a month and tell me what
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fits.
Q. Oh you suppose do you?
A. Well yeah because she knew that there were no
bruises and there were no abuse. She knew that very well.
Q. You – you – you suppose.
A. What other reason that might be if she knew
that there were no bruises and there were no abuse? And she
translated that brochure to them using Google translator. We
didn’t actually get that translation produced – to Russia.
Q. She did translate it because they can’t speak
English as you keep telling us. The – the brochure was in
English.
A. Yes and she did that with Google translation.
Q. Now let’s take a look – let’s take a look at
that brochure. If you can go to Exhibit 1 – I’m assuming it’s
gonna be in 1(A) because I had separate binders. It’s the one
with Tab 93 in it.
A. Tab 93?
Q. Tab 93, sir. Page 585. Do you – do you have
it?
A. Yes.
Q. Okay. And this is your production and this
is the elder abuse handout that Yana Skybin admits to having
provided to the Nikityuks, correct?
A. Yeah – well – yes.
Q. Okay. So let’s just go through this document
for a minute because maybe we need to agree to some basics.
Let’s go to page 589.
A. Give me a second please. Five hundred...
Q. And 89.
A. ...eighty-nine.
Q. Now firstly, I think we both agree that this
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handout is not something that was published by the YMCA, we
agree to that?
A. Yes.
Q. Yes. And we would agree that from the front
page it is something that is published by Community Legal Aid
Education Ontario? It says on the – 585.
A. Yes.
Q. So top of page 589, let – let’s see what we
agree, sir. Under the heading, “What Types of Elder Abuse are
There” and you’ve got physical abuse – it says that.
A. Yes.
Q. You would agree that physical abuse is a form
of abuse?
A. Yes.
Q. And we would agree that that’s what the
Nikityuks allege happened, correct?
A. No, they alleged bruises.
Q. Physic – resulting – that’s a result of a
physical assault.
A. Okay. Yes.
Q. Yes. Okay. Let’s go to the next page 590.
A. Yes.
Q. Let’s look at the section financial abuse.
A. No – what – let’s look at the section sexual
abuse first.
Q. No, nobody’s alleging sexual abuse. Let’s
deal with....
A. Yeah okay.
Q. Oh – oh so you say that all of these things
have to happen for abuse to have taken place?
A. Yeah except sexual abuse. See that – that’s
the point of this story. Nikityuks arrange everything pretty
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much from this brochure except sexual abuse because that would
be ridiculous, correct?
Q. Well they have – they haven’t alleged
neglect, have they? Neglect is on page 590.
A. Yeah that would be really difficult for them
– yes.
Q. Okay. Right. So let’s look at financial
abuse.
A. Yes.
Q. The Nikityuks have alleged financial abuse,
correct?
A. Yes.
Q. Okay. And let’s look at mental abuse. The
Nikityuks have made a complaint of that as well, haven’t they?
Maybe not in these exact words, but humiliation, insulting,
frightening, threatening, treating an older person like a child.
A. Okay.
Q. Yep.
A. I was reading.
Q. Okay. And now let’s look at page 591.
A. Mm-hmm.
Q. What were the signs and symptoms of elder
abuse?
A. Mm-hmm.
Q. And you read the first line, “Victims of
elder abuse may show signs of any of the following.” And line
number 2, unexplained physical injuries.
A. Mm-hmm.
Q. And that’s what the Nikityuks complaining of.
A. Yeah, but she didn’t see those injuries
right.
Q. Yeah – yeah - yeah. And then on that page,
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“Why Does Elder Abuse Happen.” Well, “Elder abuse happens
because of the abusers power and control over a person” and it
gives some explanations as to....
A. Yes [indiscernible] the whole problem. He’s
still anti-social behaviour, mental health problems, so....Did
Nikityuks allege anything of those?
Q. But they don’t have to allege each and every
– it’s – it’s not a cumulative thing, is it sir?
A. Right.
Q. And then let’s go to page 595 – 595, “Why is
Elder Abuse Seldom Reported? Some victims do not report elder
abuse because” and there’s a list. On that let’s look at bullet
points number two – or the second bullet point, “They are
completely under the control of the abuser, depend on the abuser
for food, shelter, clothing and healthcare.” Sound familiar to
you, sir?
A. Nope.
Q. Okay. And then let’s go down to the one
after that, “They are ashamed to tell anyone that a family
member is assaulting them or stealing their money.” Sound
familiar to you, sir?
A. Nope.
Q. Well let’s go down to the last paragraph,
“There are other reasons why service providers may not report
elder abuse. They may not want to involve the police or give up
information because they believe that they have a confidential
relationship with their client and cannot tell anyone else about
what happens in the client’s home.” Part of your case is that
the Nikityuks never reported the abuse to the police, correct?
A. Yana never reported.
Q. Okay. What can we point to that Yana would
have been obliged to phone the police? Nothing at all.
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A. No, there is something. And that something
is actually the active policy of YMCA at that point. As it
turned out at the material times in 2011, YMCA didn’t have any
policy related to abuse.
Q. That’s right, they didn’t did they?
A. Except the policy for child abuse or
something like that. And Fiona Cascagnette actually testified
at oral examination that that child policy was supposed to be
applied in case if anything like abuse happens and as there is
no other policy; they were obligated to apply that child
protection policy. I’m not sure about exact name at the moment.
And that child protection policy clearly states that first thing
Yana had to do was report to police.
Q. For children. The – the Nikityuks...
A. But they...
Q. ...are not children.
A. ...but they had to apply the same policy
because they didn’t have any other.
Q. The Nikityuks are not children. Number one,
do we agree to that?
A. Yes, they are not children.
Q. And number two, they’re capable adults,
correct?
A. Yes.
Q. And capable adults express their wishes,
correct?
A. Yes.
Q. And we saw from the log – and we’ve – and
you’ll be hearing, the Nikityuks did not want to report it to
the police.
A. Because there was nothing to report.
Q. They did not want to report it to the police,
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yes or no?
A. Because they had nothing to report.
Q. You’re not going to answer my question....
A. No.
Q. Thank you. There’s no obligation to report
abuse to the police with capable adults.
A. Any reasonable person would do and Fiona
Cascagnette agreed to that in the oral examination. She had
said....
Q. No she didn’t, sir.
A. Oh yes she did.
Q. She’s given evidence, your counsel will try
to put that to her.
A. Right.
Q. So stop misquoting evidence ahead of time.
A. Okay.
Q. You’ve also produced in your own
documentation at Tab 172 another leaflet on elder abuse. Do you
have 172?
A. One hundred seventy-two. Tab 172? It’s not
in the volume....
Q. It might be in 2 – 2(B) then. Actually 1(B),
I do apologize.
A. My case is empty.
Q. Well that was produced by your counsel. Are
you able to give him your copy, counsel?
MS. CHAPMAN: Sure.
A. Maybe it’s....
MR. MAE: Do you – do you have it, Your Honour.
THE COURT: I do have it, yes. It’s in this copy
I have at 172.
CLERK REGISTRAR: Would you like me to add this
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to the exhibit?
THE COURT: Yeah, that’s the exhibit book, is it?
CLERK REGISTRAR: It is.
THE COURT: You should put that in there ‘cause
it’s not there and it’s titled “Abuse of Elders
and the Vulnerable Adult by Simcoe County”.
MS. CHAPMAN: Could you give me a moment, Your
Honour so that I can get the additional copy that
I have...
THE COURT: Yes.
MS. CHAPMAN: ...so I can....
MR. MAE: Q. So you have the document before
you, Mr. Danilov?
A. I do.
Q. And this is a document in your productions.
A. Yes.
Q. And – so this is not a document that Yana
Skybin gave to the Nikityuks.
A. No, it’s not.
Q. And it’s a document that you or your counsel
found and you based part of....
A. No, it’s a – it’s a document my wife found.
Q. Okay, your wife found it – okay. And – first
– firstly, why – why is this document in the exhibit book?
A. Because it’s easily accessible through
internet since 2005 and our position is that in the absence of
active abuse related policy, YMCA – like at all no policies,
Yana Skybin could refer to this easy accessible document. And
she was familiar with the committee issuing it. That’s what she
testified.
Q. So you say.
A. She testified that.
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Q. That – that’s – so that’s – let’s look in
this document then that you’re saying – so I’m misunderstanding
that you’re saying this sets out the steps that Yana Skybin
should have taken.
A. Yes, reasonable steps. Yes.
Q. Okay. Right. Thank you. So we can look
first at page 999 which sets out....
A. Nine hundred ninety-nine?
Q. That’s correct. The definition of abuse
according to this committee, you see that?
A. Yes.
Q. And it says, “Abuse means misuse of power
and/or the betrayal of trust, respect or intimacy between an
alleged abuser and an individual which the alleged abuser knew
or ought to have known can cause or be reasonably expected to
cause physical and/or emotional harm to the person.” But that’s
a fair summary, isn’t it?
A. Yes, sure. We – we actually like this
document very much...
Q. Oh I’m sure...
A. ...so you don’t...
Q. ...I’m sure you do.
A. ...you don’t have to convince me that it’s a
good document.
Q. Oh thank – thank you, that’s extremely
helpful. So let’s go to page 1000 and we have various
definitions there of physical abuse which included hitting,
biting, scratching, pinching, kicking, handling a person in a
rough manner. You – you – you accept all of that is abuse?
A. Yeah, that is abuse.
Q. Okay.
A. Nothing like that happened in our house.
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Q. I understand that’s what you are saying, but
we’re agreeing on some fundamentals here.
A. Mm-hmm. And they’re actually possible
indicators – a lot of them if you see on the same page.
Q. Absolutely. And on page 1001, we have
emotional and psychological abuse.
A. Yes. And well we would like actually Yana
Skybin to explain which of those [indiscernible] to Nikityuks.
Q. And page 1002, we have verbal abuse.
A. Yes. And a lot – a lot of stuff here. Yes.
Q. And you also have financial abuse.
A. Yes.
Q. Which includes overcharging for services,
obtaining property and funds without the person’s knowledge and
full consent.
A. You’re implying that something like that
happened actually so - I wouldn’t do that.
Q. And let’s go to page 1005, under the heading
“Capacity”. “Capacity is the person’s ability to understand
information relevant to making a decision and the ability to
appreciate the reasonably foreseeable consequences of a decision
or lack of decision.”
A. Exactly.
Q. Yes. And we’ve already agreed that the
Nikityuks are competent. And let’s look at the section....
A. Actually no – nobody actually asked them ever
to go through capacity assessment. So I don’t know.
Q. Well let’s look at the second paragraph then,
sir.
A. Yes.
Q. “An individual is presumed capable of making
his or her own decisions unless there is a reason to believe
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otherwise. A finding of incapacity is made after an evaluation
has been completed.” Correct?
A. Correct. Exactly.
Q. And so there’s a presumption...
A. Presumption – yes.
Q. ...that the Nikityuks were capable.
A. Yes.
Q. Okay.
A. And we’re all here with all this presumption
– yes.
Q. Let’s go to page 1007, and bear in mind this
is a document that you’re saying sets the standards that Yana
Skybin of the YMCA should have followed – 1007.
A. Yes. Could – could you give me a - like 10
seconds, I might be able to refresh my memory what – what goes
next?
Q. No – no – no sir – sir – sir, you’re not
reading ahead. We’re dealing with this page 1007. Let’s stick
with 1007.
A. Sure.
Q. And the heading is “Who Does What When Abuse
is Suspected”.
A. Mm-hmm.
Q. And the second paragraph – because the first
paragraph deals with professional caregivers and the YMCA is not
a professional caregiver.
A. Exactly.
Q. So YMCA would be in the class – class as
others. “So when others, neighbours or friends suspect abuse,
it should be reported to a trusted individual or agency.” And
that’s what YMCA did, they reported it to the Women’s Shelter
and Victim’s Crisis, yes or no?
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A. They didn’t just report.
Q. They reported it, yes or no sir?
A. Yes they did.
Q. Thank you. And let’s go down to the section
“Caution”. Do you see that in big bold print, cautions?
A. Yes.
Q. “Several cautions have been identified with
the development of protocols for intervention. The following
concerns are related to the impact of reporting.” The first
bullet point, “Reporting abuse of a vulnerable person in the
community could expose that person to greater abuse if the
alleged abuser discharges the agency following the accusation of
abuse.” Do you understand that?
A. Yes.
Q. Okay. Second one, “Reporting abuse of a
vulnerable person in the community could result in the person
being isolated by the alleged abuser.” So is that your
understanding, correct?
A. Yes.
Q. Okay.
INTERPRETER: Sorry wonder if you can instruct
counsel to go a bit slower because he’s speaking
fast as [indiscernible]. When this gets back to
me it’s like [indiscernible] of the word he
speeds up, it becomes impossible.
MR. MAE: I’ll decelerate.
THE COURT: You’re speeding up, Mr. Mae. Maybe
you’re looking at the clock.
MR. MAE: I – I am, Your Honour and I am mindful
of the time. Obviously I can’t truncate this,
it’s – it’s....
THE COURT: Take your time, but just – I think
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the caution is to go slowly so that the
interpreters...
MR. MAE: Cert – certainly, Your Honour.
THE COURT: ...can stay with you.
MR. MAE: Q. So the next bullet point,
“Reporting abuse could result in the relocation of a person at
risk to an area not of his/her choice.”
A. Yes.
Q. Okay. So those are factors – their cautions
that Yana Skybin – that is recommended to be exercised. Yes?
A. Yes.
Q. Okay.
A. Can – can I refer you to page 1014?
Q. Well we’re gonna get there. I wanna go to
page 1008 next, okay?
A. Okay.
Q. This is my examination. So page 1008,
“Reporting Abuse in Residential Settings”. So let’s look at
that. “If you think that an individual who lives in a privately
run home including retirement homes is being abused, consider
the following options. Discuss your concerns with the
vulnerable adult and determine if he or she is capable.”
A. Yes.
Q. Yes. Okay. The next sentence. “If he or
she is cognitively capable, obtain permission to proceed and
plan with the individual what course of action will be taken.”
A. Yes.
Q. And that’s what Yana Skybin did with the
Nikityuks. Yes? That’s what she did.
A. In – in her own way, yes.
Q. Okay. And then let’s look at the last line
as the other two are not applicable. “Document discussions,
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actions and plans.” That’s what Yana Skybin did, didn’t she?
A. Yes.
Q. Okay. Now let’s go to paragraph 1000 – or
sorry page 1011 and this page is headed, “Assessing Each
Situation”. So let – let’s – for the first three paragraphs we
can just read the head note. “Why is this situation causing
concern?” Number two, “How do I feel – how do I feel about this
situation of the alleged abuse?” Number three, “What are the
relevant factors?” Let’s go to the third bullet point, “Is the
person CAPABLE” – capable in capital letters – see that sir?
A. Third – yes.
Q. “A person is presumed capable unless the
investigator has reason to believe otherwise.”
A. Yeah.
Q. “Capacity to make decisions about finances
and property is separate from capacity to make specific
decisions about personal care.”
A. Yes.
Q. Okay. And then we go down....
A. I’m sorry – can – can I point to your
attention one simple fact that right after Nikityuks left, we
sent to YMCA letter where I expressed some concerns....
Q. No – no – no – no. You sent a letter to the
YMCA on October...
A. Yes.
Q. ...the 26th, 2011 which we will be coming to
sir.
A. Yes.
Q. And that’s after they left.
A. That’s what I said.
Q. Yes. So let’s go down to the sixth bullet
point, does the person CONSENT” – capital letters consent, you
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see that – “to sharing information with others?”
A. Yes.
Q. Okay. And then number four, “What are the
values, wishes and goals of the client?” Yana Skybin assessed
that, she referred the Nikityuks, correct? She followed their
wishes, correct? Yes or no.
A. You are doing all this on the assumption that
there was an abuse. There wasn’t.
Q. She referred them, yes....
A. And she knew that.
Q. Okay. Yes or no, she referred them.
A. Yes, she referred them – yes.
Q. And then number five, “One of the options for
next steps and intervention, consider the facts client desires,
those already involved including agencies and the possible
consequences of the options.” Do you see that?
A. Yes.
Q. And you’re relying on this document, sir.
Number six – and this is the – this is the biggy, what is the
response – let’s look at the second – let’s look at them both,
“utilize resources”. Yana Skybin did that. She used external
agencies and legal counsel. “Maintain communication, implement
plans within timelines, identify possible barriers and
opportunities and evaluate outcomes. Secondly, support the
person’s choice of action.” That’s what Yana Skybin did. Those
are the steps she took, correct?
A. Correct.
Q. Okay. And there’s more on that on page 1012.
First of all the second bullet point, “Consider the possible
consequences if a complaint of abuse is pursued. Many
individuals are dependent on the persons suspected of abuse for
shelter, financial assistance or personal care. The
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investigator has an obligation to explore with the person their
options for continuing care, shelter and service should they
chose to pursue alternate arrangements.”
A. Shelter is very important here.
Q. Of course it is – of course it is. And Yana,
through the external agencies, they arranged shelter for the
Nikityuks, correct?
A. Yes.
Q. Yes.
A. Yes. On October the 7th, but Nikityuks never
actually lived in the shelter. They – they – they kept living
at home. That’s – that’s very important here. They were
already registered at the shelter.
Q. “Should they chose to pursue alternate
arrangements.” This is a document you’re relying upon, sir.
Let’s go down to the third bullet print, “Supporting the
person’s decision. Supporting the person’s choice of action, no
matter what decision is made, the person will need your support.
Support may include physical or personal care providing it
through agencies, emotional, spiritual, legal or financial.
Every effort must be made to assist the person to access the
appropriate expert. In some cases, the person may wish that you
do nothing further than support them as you have been doing in
the past.” The Nikityuks didn’t want to go to the police when
they reported the assault on August 23rd.
A. Of course they didn’t because there was
nothing to report. That’s the whole point of this story.
Q. So – so you keep saying, sir. So you keep
saying. But the record showed they did not want to go to the
police at that time.
A. Of course they didn’t.
Q. Okay. And then we have a little bit more on
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the issue of capacity. At the last paragraph, “Presuming all
determining capacity, remember that a person is presumed capable
unless the investigator has reason to believe otherwise.” And
then, let’s go down to the third one because I understand one of
your concerns is that nobody contacted my wife or I. “The
substitute decision maker, if not the abuser, should be involved
if there is a question of competency.” So nobody’s calling you
or your wife because you’re the ones accused of the abuse.
Makes sense doesn’t it?
A. No, because she – she knew that there were no
abuse.
Q. It makes sense that you’re not gonna contact
the alleged abuser. That’s what it says in the document you’re
relying upon, sir.
A. Okay.
Q. So 1014, this was the page you referred to
earlier on, sir.
A. Yes.
Q. Okay.
A. With a decision here – let’s look at that.
Q. Okay. So let’s follow this through.
“Intervention Model for Vulnerable Abuse Victims: Basic Model”
and you have the preamble, “Disclose your evidence or suspicion
of abuse, assess them by service providers, determine if the
person is at risk of serious harm.” So we need to go down the
left-hand side because we have two options....
INTERPRETER: Your Honour, I’m sorry. Again we
are in the same pattern of speeding and not
hearing.
MR. MAE: Okay. I’ll slow down – I’ll slow down.
THE COURT: All right. Just – let’s go back to
the beginning of page 1014.
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MR. MAE: Q. Yes. So page 1014 is an
“Intervention Model for Vulnerable Abuse Victims”. And we see
the whole page is a flowchart, correct sir?
A. Yes. Very important – the most important
page in this document.
Q. I couldn’t agree with you more, sir. We
agree on something at last.
A. Okay.
Q. So the first section deals with the
background of the disclosure of evidence, suspicion of abuse.
A. Mm-hmm.
Q. Assessment by service providers...
A. Mm-hmm.
Q. ...and determine if the person is in risk of
serious harm.
A. Yes.
Q. Yes.
A. The – the key point here.
Q. So let’s look at the left-hand side of the
flowchart because the word “yes” has been determined. Okay? So
let’s follow through these steps. “Contact police as
necessary.” Doesn’t say contact police period. It says “as
necessary”, correct?
A. Yeah.
Q. “Insure safety, provide emergency services as
necessary.”
A. Right. Of course it wasn’t necessary because
there were no abuse.
Q. Well – and again, it’s set against the
background that the Nikityuks did not want to involve the
police. And the reason why they did not want to involve the
police...
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A. Because there was nothing to report.
Q. ...so that – so that your daughter or you did
not get in trouble.
A. We wouldn’t get in trouble because we were
actually would prefer if police was involved – because police
would provide the investigation, clean up our name and we would
be good.
Q. It’s easy to say that after the event.
A. Oh we kept saying that since then.
Q. Let’s go to the next part of the flowchart
because so far, those steps were taken by the YMCA and Yana
Skybin. “Determine if the person is able to understand the
information that is relevant to making a decision concerning
treatment, intervention and if they are able to appreciate
reasonably” – sorry “reasonable, foreseeable consequences of a
decision or lack of decision.”
A. They obviously were not able to appreciate
those consequences as you can see right now.
Q. Do you have any expert witnesses lined up?
Any psychologists, psychiatrists?
A. No. That’s – that’s my opinion.
Q. That’s your opinion and you’re a physicist,
you’re not a psychologist.
A. Correct.
Q. And so in that part, we go back to the yes.
If yes, capable. It flows down to “determine if the person can
sense”....
A. How about – how about unsure box?
Q. Oh if we go to unsure, it still goes to the
same box there. It goes to the same box that I’m referring to.
A. Okay.
Q. All roads – all roads lead to Rome, sir.
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“Determine if the person consents to the intervention.” So Yana
Skybin was following the wishes of the Nikityuks, yes or no?
A. I don’t know.
Q. You don’t know, okay. Well I’m saying it’s
yes. And then we go to the box underneath that, it says
“Explore alternative living arrangements as necessary. Provide
support and assistance as needed.” That’s what happened.
A. Not really, no.
Q. That’s what – that’s what happened.
A. No, she – again there were no [sic] any
abuse. So it’s – it’s not what happened.
Q. So – so you’re saying.
A. Yes.
Q. But even if it’s no, the box in the middle
“Provide support activities to minimize abuse, offer services to
alleged abuser, document findings.” And then they both go down
to the last box, “Continue to monitor, evaluate outcomes of
intervention, revise intervention plan as required, provide
support, practical assistance and referral to community
services.” That’s what happened.
A. I could refer you to that – Yana Skybin’s log
again and at some point – and believe it happened on October the
7th, some person named Bev has been called to her office.
Q. And Bev will be one of the witnesses. She’s
on the witness list, sir.
A. Yes, but my point here is different. See at
that point there was some kind of plan created. And there were
many steps in those plans. And one of them was collecting
evidences like older records of how they yelling at you and I
believe some other. None of those records during that
monitoring process were provided because there were nothing to
monitor it.
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Q. Well...
A. And nothing was going on during that month.
Q. ...your counsel will be dealing with that in
her cross-examinations, okay.
A. I am responding basically to your long like
questioning coming to that last box at the bottom. Continuing
to monitor and every laid out counsel intervention. So if she
did that properly, continue to monitor – she maybe continued to
monitor, but what are results of those monitoring?
Q. But they’re already out of the house. She is
monitoring....
A. No, they are not. They keep living in the
house.
Q. I would....
A. They came to her on August 23rd and they kept
living in the house one month after that. Then what’s that –
during that month, what happened?
Q. Sir, let’s go back to the flowchart. Let’s
look at the “if yes” box. “Explore alternative living
arrangements as necessary.” That can be for continue to
monitor. That’s what happens. They were put in alternative
housing, they were put in the shelter.
A. No what happened, they just didn’t want to
wait for yes on the waiting list.
Q. Okay.
A. That’s what happened. Right.
Q. Let’s turn over page to 1050 and this is also
relevant sir, with respect to the actions of the YMCA and Yana
Skybin. This is the intervention model for use with vulnerable
abuse victim concerning financial abuse. Okay?
A. Okay.
Q. And we have the background information in the
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first three boxes, disclosure of evidence, assessment by service
providers, et cetera and then big box right across the page,
“Determine if the person is capable to consent to the treatment
of intervention.” We – same – same as on the first one.
A. Yeah. Sure – sure.
Q. And let’s look at the left-hand side because
we’re – we’ve already determined that the Nikityuks are capable,
so we’ll go down the yes side. Although both of these boxes all
go down to the same place. “Develop an intervention plan with
the individual that they agree to participate in.”
A. Yes. Well....
Q. And that – that’s what happened.
A. Intervention plan happened?
Q. A plan – an intervention plan, yes. It
happened.
A. Yeah. Okay.
Q. “Advise and inform the person about options
and community services, refer to appendix of resource provided
in this document.” So steps were taken to assist the Nikityuks,
correct?
A. There is big difference between steps which
were supposed to be taken and steps which were actually taken –
but yes.
Q. Okay. And then let’s look at the big box at
the bottom. Read the first line, “Depending on the
circumstances of the situation” – so the circumstances of the
situation, so you appreciate not all situations going to be the
same. We would agree to that wouldn’t we?
A. Well yes – sure.
Q. Yes. “The following may” – not are, not
will, “may be appropriate”. So we have a number of situations
and many options, we agree on that? This is the doc...
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A. Of course.
Q. ...this is the document you’re relying upon.
And there are a significant number of bullet points. So not all
of them are applicable. Let’s look at the applicable ones. On
the left-hand column, “Refer person to a lawyer or legal aid to
obtain advice in relation to revoke a Power of Attorney for
property, freezing bank account, et cetera.” That’s what it
says there. That’s what happened, correct?
A. Yes.
Q. Yes. Okay. Let’s go into the right-hand
column. “When there is unexplained withdrawal of funds from
person’s bank account, prompt action is required. Give several
considerations: alert the bank manager, arrange transportation
to bank, arrange for bank representative to meet with vulnerable
person, obtain written permission to enquire about the account,
assist person in closing account and opening new one.” That’s
what happened, isn’t it?
A. Not really. Because Yana knew all
arrangements – financial arrangements with Nikityuks I believe
since 2009 and well – she – if she was reasonable person or if
she was at least an honest person, she would never believe
Nikityuks because she knew everything that there were no
financial robbery, why they are in Canada in the first place and
well that financial robbery – for her it’s synonym of Russian
T.V. program you turned on.
Q. But that’s....
A. That’s what financial robbery for her.
Q. That – that’s what happened though sir, isn’t
it?
A. No. Nothing like that happened.
Q. Okay. I’d like you to have – to turn to a
document which is at Exhibit 3(A), Tab 3. So if you go to the
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first Tab 3 and at the beginning of that tab....
A. I’m sorry is it hidden kinda
[indiscernible]....
Q. Yes, it is – yes, it is. We’re – we’re back
to that same document. But I’d like you, within that tab, to go
to page 39. Unfortunately, this was mis – miscopied and there
are some additional documents at the back. They – they’ve been
produced since day one. And I’m looking at page 39 which is a
document prepared by the Province of Ontario. You see that,
sir?
A. Yes.
Q. And on the front page we have definitions of
physical abuse and financial abuse.
A. Yes.
Q. Yes. And if you’d like to take a moment to
read them, I’m sure you’ll agree that they are....
A. I agree.
Q. You agree to them, perfect.
A. Mm-hmm.
Q. I’d like you to go to page 41 in that tab.
You have it, in bold – the black section at the top?
A. Mm-hmm.
Q. “The single largest factor that contribute to
the development and/or maintenance of an abusive relationship is
isolation. Talking to a person is one of the first steps to
breaking down this isolation. If – if a person does tell you
that they are being abused, you should”....
A. I agree with everything on this page.
Q. Okay.
A. It might save some time.
Q. Okay. Perfect but I’m – but we need to
specifically see what you agree to. Bullet point number one,
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“Believe the person.” Yana Skybin believed the Nikityuks, she
said you have no evidence otherwise.
A. I don’t think so. She knew very well that
they are lying. That’s the whole point of this story.
Q. So – so you say.
A. Yes.
Q. But you can’t, can you?
A. And that’s – that’s what we are going to
prove in the case against Nikityuks.
Q. That’s what – that’s what you’re gonna try to
prove, sir.
A. Yes, sure.
Q. And then let’s go down to the fourth bullet
point, “Do not deny what is going on.”
A. Nothing was going on. There was nothing to
deny.
Q. But Yana Skybin didn’t deny what was going on
because she believed what was being told to her.
A. Because nothing was going on.
Q. Okay. And then let’s go down further,
“Understand that making efforts to change an abusive
relationship is extremely difficult. A person who is being
abused can be very afraid and not certain what to do. It can
take a very long time for the people to decide to make change in
their lives, to reach out for help, even talk about their
situation.”
A. So you’re implying that that very proud
military man was afraid of something, right?
Q. Afraid of being seen by others as weak.
Afraid of being seen by others as a victim of abuse.
A. That’s what you’re saying.
Q. Okay. Let’s look at the last two bullet
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points, sir – ‘cause you – you agree to everything, “Encourage
the person to seek help.” Encourage. So you agree to that.
A. Yeah, if it was abuse – yes of course I would
agree with that.
Q. Last one, “Do not confront the perpetrator
yourself.” You’ve already agreed to that, so their reasons not
to pick up the phone to call an alleged abuser, correct?
A. There were no [sic] any reasons because there
no abuse.
Q. The reason given in this document, “This
could put you or the person who’s being abused in trouble.”
A. Yana Skybin knew my wife since 2009. She
knew that my wife is – well extremely good person in 2009. She
live that in 2010. She did that most of 2011 and all of a
sudden in August 2000 – 3rd [sic], she changed her mind and now
she has completely different opinion about my wife. You know
what, I – I don’t believe that might happen if you actually know
a person.
Q. You have the same exhibit in front of you,
sir. If you can go to Section B, Tab 2.
A. I’m sorry.
Q. Section – Section B. Sir...
A. I have trouble to locate...
Q. ...if you find – if you find the green...
A. ...Section B.
Q. ...the green tab.
A. I see Section – yeah. Section B, Tab 2?
Q. Yes.
A. Yeah, this is the plan. Yes.
Q. That’s right. You call it the escape plan, I
believe.
A. They – they called it escape – escape plan.
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I believe it’s in Yana’s log. Escape plan, it’s term from
Yana’s log.
Q. Okay. Well we’ve heard the word plan in the
document we’ve just looked at. We’ve seen the word plan.
A. Yes.
Q. Okay. And of course a substitute word for
plan could be arrangements. It’s the same thing.
A. Yeah okay. I would give you that just to
save time.
Q. So let’s – let’s look at the English section.
Step number one, revoke general Power of Attorney for finances
and health – okay. You see that?
A. Yes.
Q. So that was done.
A. Mm-hmm.
Q. Close joint bank accounts and credit cards.
A. Mm-hmm.
Q. That was done.
A. Mm-hmm.
Q. Find out how to hold mail or open a PO Box at
the Post Office.
A. Mm-hmm.
Q. Consult a lawyer, how to put on hold the re-
sale of the house until decision is made regarding the assets
transferred by A and V...
A. Yes.
Q. ...to their daughter when they immigrated to
Canada. So far on these steps, I’m not so sure about the PO
Box, but these steps have all been taken, correct?
A. Yeah – well I’m trying again just to make a
point here that they – they were taken, but they were not
supposed to because Yana Skybin knew very well that it’s over
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lie. And that’s her conspiracy.
Q. So – so you keep saying.
A. Yes.
Q. So number five, inform pension plan in Moscow
where to deposit the pension in future.
A. Mm-hmm.
Q. Submit direct deposits for Government
benefits through Canada – so Revenue Canada.
A. Mm-hmm – Mm-hmm.
Q. Open a credit card when the first pension
arrives.
A. Mm-hmm. Yes all those steps were taken.
Q. Okay.
A. Except one. There is one more step here.
Q. Which – which one?
A. Thirteen.
Q. I haven’t....
A. The record’s read on the Dictaphone and keep
– well that is where it taken. I – I confirmed them in bulk,
okay. But the – the thirteenth wasn’t.
Q. But sir, these – these need to be read....
A. That’s the most – that’s the most important
one.
Q. Yes. But they need to be read into the
record. And I appreciate you’re gonna say that wasn’t done and
guess what, I’m gonna agree with you. I’m gonna agree with you
that the Nikityuks did not record any discussions.
A. Exactly, because there were no discussions
like supposed to be recorded.
Q. That – that – that – so let’s back away on
that thought. Number eight, apply for a legal aid certificate.
A. I already confirmed...
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Q. Yes.
A. ...it in bulk that all those steps except 13
weren’t...
Q. Okay.
A. ...taken. All of them.
Q. For the record then sir, I’ll just read them
out so that they’re on the court record.
A. Yeah, okay. You can make it faster and I’ll
confirm it....
Q. I can’t....
A. Okay.
Q. ...I can’t make it faster because of the
translator. Open an email account in Yahoo or Hotmail.
Register for online banking with Scotiabank. Apply for Ontario
Works. Apply for subsidized housing. Number 13 that you want
to highlight, record tracks on Dictaphone and keep diary of
encounters. Also, messages on a cellphone or emails. And we –
we agree that that wasn’t done. Number 14, pending litigation,
lien on the house.
A. And 15 which is only in Russian, it says list
where to change address.
Q. Okay.
A. Translated.
Q. Thank – thank you I was – just about to ask
you what that translation was. So – and you’ve already said all
of those things happened with the exception of number 13.
A. Yes, all those things happened with the
exception of 13 and that’s the whole point of the story.
Q. And would you concede or agree that this list
was prepared by Yana Skybin in conjunction with one of the
professionals from the housing shelter?
A. I’m not sure about level of professionalism
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of that person, but what Yana Skybin log says that yes it was
prepared in conjunction with some Bev person whose title is
advocate – I’m not sure what that means. Is it a lawyer or....
Q. Okay. So – so let – let’s just summarize
what we’ve been discussing for the last 45 minutes to an hour.
Yana Skybin acted in accordance with the protocols set out in
those documents. The – the three documents, correct?
A. Disagree.
Q. You – oh so you don’t agree now?
A. Of course I don’t agree. I – I keep saying
that because there were no abuse. So there were no protocols to
apply.
Q. Okay. Just bear with me for one second,
okay? Yana Skybin receives the report of abuse.
A. She knows very well that it’s a lie.
Q. But the steps she followed were all in line
with those protocols.
A. If that hypothetical situation happened, yes.
Q. Okay. Great. And she found out what the
Nikityuks wanted to do. It’s one of the steps in the protocol.
A. Yes.
Q. Yes.
A. What they wanted to do, she figured out –
yes.
Q. And she respected their wishes. Yes?
A. I need to think about it. I don’t know.
Q. You don’t know. Okay. But – but we’ve said
– just – just to tidy this up – summarize, she referred them to
the shelter – yes.
A. Not just referred, she – she positioned
herself as an eyewitness of some bruises which never existed.
It’s not referral, it’s much more than that.
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Q. She referred them.
A. Yes, she did.
Q. Okay. And she referred them to legal
counsel?
A. To – to five of them before and I believe Mr.
Bornmann’s the sixth one – yes.
Q. Okay. Well all those four or five – many of
them work in the same Community Legal Clinic.
A. Some of them.
Q. Yeah, okay. And she went to the bank with
them to assist them with their finances.
A. To many banks.
Q. Yes. And she supported them.
A. She says that she was an interpreter – events
when she assisted them in the banks. I – I’m not sure if she
supported them or not, but she said that she was just an
interpreter.
Q. And you have no evidence that Yana was doing
this maliciously, do you?
A. Of course I do. That’s what I keep – keep
saying all the time. Of course she knew that it’s all a lie and
– haha – and well there is some wording in those documents she
produces which keeps it very obvious that it – it’s malice.
Q. Well let’s – okay let – let’s just try to
understand malice at the moment. Let’s make sure that we
understand the same thing. And this relates to your defamation
claim which I’ve yet to get to yet.
A. Yes.
Q. Because I’m still dealing with the issues of
negligence and conspiracy and indifferent a breach of the
contract. Help me with this. Saying something untrue about
somebody, you would agree that’s defamation?
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A. Depends on – on what – on what that actually
is. If it’s something pleasant then it’s not.
Q. Okay. Let’s say something untrue that is
negative, let’s – let’s not play games here sir. Somebody says
something untrue, negative about the person, defamation.
A. Defamation.
Q. Okay. And then on the other side, malice.
A. It’s....
Q. But the mere saying something may not be
malicious, let’s get to the other side. Pavel is an abuser.
You would say that’s defamation, yes?
A. Isn’t it a question of law?
Q. Well – no – no – no, I just want to
understand because you’re saying malice. I want to understand
what you understand to be malice.
A. Okay.
Q. Just – so Pavel is an abuser, defamation.
A. Yes.
Q. And I want him to pay for his sins, I want
him to rot in hell and be thrown into prison forever. Sounds
like malice to me, doesn’t it?
A. Yes, it’s very strong malice I would say.
Yes.
Q. So let me just ask you a [indiscernible] and
this – and this is the part Your Honour, depending on this
answer, is how long I’m gonna be with this witness. And I’ll –
I’ll explain, as well, ahead of the question. We have a
plethora of documents. There are five documents which allege
defamation in which defamation is alleged. But their part of a
slew of emails. And depending on Mr. Danilov’s answer, we’re
going to be going through each, every one of those emails
because they all need to be explored. So – and what I don’t
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want to do, Your Honour, is skip this and then have my friend in
re-examination deal with these issues with Mr. Danilov. So I’m
– I’m trying to avoid expanding time or getting caught by
something arising out of this cross-examination. Other than the
defamatory comments in the emails you’ve referred to....
A. There were – I’m sorry, there were not just
emails. There were also letters to me from the Nikityuks.
Q. Okay. Let’s use the word communication
then...
A. Yes.
Q. ...okay to satisfy you. Did Yana Skybin
express any malicious comments about what she wanted to happen
to you or your wife in any of the emails?
A. Yes.
Q. Okay which ones. So I guess we’re gonna go
through them.
A. Let’s go at least through that one where she
says that it’s a full blown abuse with physical attacks and
financial robbery and all this stuff.
Q. Okay. So I apologize, Your Honour, we’re
gonna be some time going through these documents.
A. Oh yeah, let’s go through all of them.
Q. Okay you – you have the exhibit in front of
you already, so let’s go to subtab B(3). So that’ll be the next
page.
THE COURT: Which exhibit are we in now?
MR. MAE: Sorry, Your Honour.
THE COURT: Which exhibit are we in?
MR. MAE: That is exhibit 3(A). Q. So this is
one of the emails that you played in your statement of claim as
containing defamation, correct?
A. I’m reading.
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THE COURT: Sorry what – what tab are we at?
MR. MAE: Tab B(3), Your Honour.
THE COURT: Sorry just for clarity, is this one
of the five or is this something separate?
MR. MAE: No this is one of the five, Your
Honour. In fact I can – I can help you in the
Trial Record at Tab 1.
A. Yes, it’s one of them.
MR. MAE: Q. Page 9, paragraph 24 of the
statement of claim. So this – this is one of the defamatory
emails – alleged defamatory emails. And for the record, we see
that it is an email from Yana Skybin dated October the 4th, 2011
at 3:30 p.m. to Anthony Cuthbert (ph) and in brackets after his
name CLC which means Community Legal Clinic.
A. Yes.
Q. So let’s look at this email, sir.
A. Yes.
Q. Let’s – let’s read it through.
A. Let’s read the subject first.
Q. So the subject matter is “Another Elderly
Couple”.
A. Which means that there were others before...
Q. Okay.
A. ...so it’s even a part of something.
Q. So let’s read that first. You’re not
mentioned.
A. Hmm?
Q. You’re not mentioned in the subject matter
line – your name is not mentioned is it?
A. Mentioned. No. My name is....
Q. And neither is the Nikityuks’ name mentioned.
In fact neither name is mentioned anywhere in this email,
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correct?
A. Yeah – correct.
Q. Okay. And we see from the header, you’re the
computer guy as you call yourself.
A. Mm-hmm.
Q. This email is not copied to anybody else.
A. Yes, it’s not copied.
Q. Okay. So first line, “Sorry I did not catch
your first name. Could you please tell me what it is?” So
second paragraph, “I have a case of elderly abuse. It’s a
couple. They were sponsored by the daughter and husband and
transferred all their access to the daughter’s account before
arriving. The daughter and spouse use the funds to build a
house and made investments that their daughter is now managing.”
So that’s based on the information provided by the Nikityuks to
Yana Skybin. Agree or disagree?
A. Not completely – no. She knew very well that
we didn’t use the funds to build the house since 2009.
Q. Okay. So you say.
A. Mm-hmm.
Q. “The arrangement was that the mother and
stepfather live with them comfortably until the end of their
days. The daughter has a general Power of Attorney on both of
them. She has full access to their bank account and it’s joint
with her and her husband.” No problem with any of that so far?
A. So far.
Q. Okay. “Their pension comes from another
country.” You okay with that?
A. Yes.
Q. Okay. “And their daughter tells them how
much they can withdraw.”
A. No it’s other way around, they tell the
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daughter how much to withdraw.
Q. Well that’s what Yana was told. Okay. But
she – she’s made no personal comments. She hasn’t added on the
end of that anything like I find that disgusting. There –
there’s nothing there, is there?
A. Not yet.
Q. No. Okay. “Since that year the relationship
has started deteriorate” – that’s what the Nikityuks told her,
“now it’s full-blown abuse with physical attacks, threats and
financial robbery.”
A. Mm-hmm.
Q. “They cut off their T.V., internet and deduct
money from their pension giving them a list of what they charged
them for.”
A. Yeah, that’s all not true.
Q. Yeah, you got – you got a problem with that,
haven’t you?
A. Yes, a big problem with that.
Q. But Yana makes no personal comments or
observations about that, does she?
A. Financial robbery is her personal addition
actually because during the oral examination when she has again
asked what she means here by financial robbery, she says okay
they cut off their T.V. It’s – it’s so much of control of their
life, of – of course it’s – it’s crimes, financial robbery or
something like that.
Q. But that’s what – that’s what she was told by
the Nikityuks. Okay?
A. No Nikityuks didn’t tell her about financial
robbery.
Q. Okay.
A. It – it’s her addition.
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Q. So – so you say. So what’s the next
paragraph, “The daughter and her husband are fully responsible
for the elderly couple 10 years. But now that couple said
they’d like to move out and live separately. Their daughter and
husband say they have nothing, no rights and they’ll never move
out.”
A. That’s ridiculous. That never has been said
and – well....
Q. Well that – that’s – that’s...
A. No rights...
Q. ...that’s what....
A. ...they have nothing and they – they’ll never
move out. Well it’s – it’s all lie, so....
Q. Okay. Well that – that – that’s – that’s
what Yana was told. Okay.
A. So you keep saying.
Q. Okay. Next paragraph, “I’m meeting with Bev
Juneau” and for the record, J-U-N-E-A-U, “tomorrow. She will
help us with legal rights. But if this couple wants to apply
for legal aid, can you help with the application?” Yeah?
A. Yes.
Q. So – so she’s asking a lawyer for help. Yes?
A. Yes.
Q. And she’s giving the lawyer the background of
the information, correct?
A. Yes.
Q. Okay. “Can you help with revocation of
general Power of Attorney? They want to do it A.S.A.P. Now
that they couple’s started to look for help, their daughter is
going through their papers looking for medical records.”
A. Svetlana didn’t have to do something like
that going through papers looking for medical records, she
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always had access to all their medical records because she was
accompany them to doctor appointments all the time.
Q. Next sentence, “She might want to declare
them incompetent or something.” Now Yana Skybin’s going to say
that she had a telephone discussion with your wife on the 19th
of August...
A. Mm-hmm.
Q. ...when your wife telephoned her...
A. Mm-hmm.
Q. ...and basically said – and – and I’m
paraphrasing, but we can look at the log to be more specific...
A. Mm-hmm.
Q. ...that the Nikityuks – let me actually look
at it. I’ll just....
A. Yeah – well I would suggest don’t bother
because all that conversation is twisted and...
Q. Well....
A. ...my wife will testify little bit different
what happened.
Q. When – when I need your advice sir I’ll ask
for it, so I will bother. Yana’s log, August the 19th and I’m
quoting direct from Exhibit 3(A), Tab 1, “I received a call from
Svetlana Danilova telling me that if her parents come to me
asking for help with subsidized housing, she wants me to know
that nothing changed in their household. They are under
influence, going to YMCA and talking to other people fill their
heads with ideas. They are strange and unreasonable. Svetlana
and her husband built this house for four people and they are
not going to make any changes.” That’s Yana’s log entry.
A. Yeah I know.
Q. Okay.
A. And – well it’s twisted. That’s what I’m
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saying.
Q. And then – and then she goes on in this
email, “She might want to declare them incompetent or something.
They are quite competent. They’re attending English classes at
our Centre, they made lots of friends and everyone likes them.
They travel and go to events, very active people.”
A. So basically this is Yana Skybin’s capacity
assessment of Nikityuks.
Q. No, sir.
A. That’s how I understand it. She – she puts –
that’s why she declares them competent or capable or whatever...
Q. Right.
A. ...but the thing here is that see – they made
lots of friends and everyone likes them, but Nikityuks allege
that we didn’t permit them to meet friends. That we limited
them somehow in this.
Q. Okay. But....
A. She knew that it’s all untrue.
Q. That – that there are no comments here about
– that are malicious, that Yana’s not saying anything personal
about you, is she? She’s just asking for legal help and giving
the lawyer the background, correct?
A. It’s very easy to figure out who that
daughter is she keeps....
Q. There’s nobody named in that email at this
stage.
A. At this stage....
Q. Okay. Last paragraph, “What other areas of
legal help can you provide in this situation of elderly abuse?
Of course they want to move out, but again, where?”
A. Mm-hmm.
Q. “And how can they remain safe in the house
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where the daughter constantly harasses them?”
A. So I would like to – well bring your
attention sir to the date, it’s October 4th, 2011.
Q. That’s correct.
A. And at that point – and before that point
actually, Yana knew very well that all abuse accusations are a
lie because they all are based on that full-blown bubble of
bruises which never existed and all this attempt to attract a
lawyer to this thing, it’s actually again a lie and that’s
considered [indiscernible].
Q. So that’s what you’re saying?
A. Yes.
Q. Okay. Well on October the 4th, the log
reveals that a bank – opened a bank account, that’s what it
says. So that could have only been done with the Nikityuks
visiting her – being with her, correct?
A. Whatever you think.
Q. The log October the 4th....
A. I don’t have here.
Q. Yeah you do, it’s at Tab 1. You just need to
flip back. So we’re just – we’re just placing this in time.
A. Tab – Tab 1.
Q. The very first Tab 1 – Tab A(1).
A. October the 4th you’re into?
Q. Yes. It says, “Opened a bank account so to
document – contacted Bev Juneau, legal advocate.”
A. Yes.
Q. Okay. So open the bank account. That would
have been when she went to the bank with the Nikityuks to open
their bank account.
A. I suppose so, I have no idea about that bank
account.
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Q. But you were referring to the date, so...
A. Yes.
Q. ...so on October the 4th....
A. My refer – refer – reference to the date was
just to point out that it was after August 23 – way after August
23.
Q. So – so there is nothing in that letter that
mentions you and there – there are no personal observations that
are malicious.
A. In this letter, my wife is mentioned.
Q. By name?
A. Not by name.
Q. Okay.
A. No, but it’s easy to figure out who she is.
Q. Okay. So – so what loss – what specific loss
did you say you’ve had out of this....
A. I don’t have to prove losses for it to be
defamation.
Q. Do you have any evidence that this email is
being sent to anybody else?
A. No.
Q. Okay. And you agree that CLC – Community
Legal Clinic, are the Nikityuks’ legal counsel?
A. Not at that point, no.
Q. They are now.
A. Now, yes.
Q. Okay.
A. But not Anthony Cubert [sic] and not on
October the 4th.
Q. Right. Now, this is where we’re gonna take
some time. I’m gonna – let’s go to the next page...
A. Yes.
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Q. ...after that document of October the 4th.
So on October the 5th, we have a release of information document
signed by the YMCA. See that?
A. Yes.
Q. And the consent is for disclosure of the
following information: my name, my situation at home and legal
advice as to my legal rights in my situation signed by Alla
Nikityuk, correct?
A. Yes.
Q. Okay. So that’s what happened on that day.
And we need to go through this?
A. No.
Q. Okay. So then on the next page, October the
5th and this is chronological.
A. Next page, you mean Tab 5?
Q. Yes, next – next tab. We see an exchange of
emails between Yana Skybin and Bev from the shelter.
A. Yes.
Q. And those emails relate to thanking her for
an appointment.
A. Yes.
Q. And asking when can we meet to fill out an
application for subsidized housing.
A. Yes.
Q. No malicious comments about you in that?
A. Not in this one – no.
Q. No. Okay. Next tab, which is another
release of information.
A. Mm-hmm.
Q. This one signed by Valentin.
A. Yes.
Q. For releasing the same information.
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A. Yes.
Q. Okay. Let’s go to the next tab.
THE COURT: Mr. [indiscernible], continue to
refer to the tabs by number just for the record.
MR. MAE: Oh – sorry, yes Your Honour. Sorry.
Q. The next tab being Tab number 7 of Exhibit 3(A). We see an
email exchange between Anthony Cuthbert (ph) and Yana Skybin.
And Yana writes on October the 6th, “I’m waiting for the office
of Guardian and Trustee to call me back.” And it goes on to
deal with notarizing documents. Yes?
A. Yes. And it – it implies that before that
she called off – office of Guardian and Tran – Trustee and I
don’t know actually what she told them.
Q. No you don’t.
A. And my – my wife knows.
Q. Why your wife was there?
A. No.
Q. Okay. So your wife’s guessing then?
A. No. She called the same office later.
Q. Okay. And then Mr. Cuthbert responds with
respect to notarial copies and translation. So nothing said
malicious about you in those communications?
A. Let me read it carefully.
Q. Okay. You can read it carefully.
A. Yes, I’m good with this one.
Q. You’re good with that one?
A. Mm-hmm.
Q. Beautiful, thank you. And those emails are
just furthering – assisting the Nikityuks, correct?
A. I wouldn’t say so because again, you know
what I keep saying, right?
Q. Well I know what you’re saying, ‘cause you
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don’t agree with it. So let’s go to Tab – Tab 8.
A. Yes.
Q. And this is an email chain which on the
second page has those same emails from the previous tab.
A. Mm-mm.
Q. And this email chain is between Yana Skybin
and – and Anthony Cuthbert (ph). And in the October the 14th
email, Yana writes, “Yesterday we met with Sue Cooper (ph) and
she started the inquiry into the finances and health records on
behalf of Alla and Valentin Nikityuk.
A. Well the phrase here which will make caught
attention, is the situation at home is collapsed.
Q. Okay. But that – that’s stating a point of
fact. But there’s no....
A. I – I – I’m not – I’m not sure why you are
going through emails which don’t contain defamation because all
defamation par – part – particulars are provided in our claim.
Q. They – they are sir, but your claim and....
A. It – it...
Q. Well you’re supposed to prove.
A. ...it looks like you are going, you know,
through all those which don’t have defamation...
Q. Sir – sir....
A. ...like as much as you can.
Q. Sir, your lawyer can speak for you. If she
wants to raise an objection, she can. You’re saying Yana was
malicious. I asked you earlier on about these emails if you
could point to any that’s malicious...
A. Yeah – to me...
Q. ...so far we’ve seen none and we’re gonna
keep going.
A. ...seems like you’re just wasting daylight.
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THE COURT: Well if – if I can just interrupt
because we’re coming close to the lunch hour.
Mr. Mae it seems that you’re main concern is with
five particular statements in the client...
MR. MAE: Yes.
THE COURT: ...you’ve dealt with one of them.
MR. MAE: Yes. And the others will come within
this section, Your Honour. But....
THE COURT: Yes, I’ve heard. And the other
emails don’t form part of the claim.
MR. MAE: They – they don’t, Your Honour.
THE COURT: Perhaps they provide a context. And
I think what you’re asking the witness is if he
could point to anything in those other emails
that’s malicious or defamation.
MR. MAE: Well not defamation because the claim
is pleaded. I’m – I’m not gonna have somebody
now throw at me that they’re gonna allege that
something else is defamatory. But if you
remember, Your Honour, based upon Justice
Corkery’s judgment, we’re already into qualified
privilege. We’re already there. So they have to
prove malice. And the only way, in my respectful
submission that they can prove malice or – if I
have to disprove it, is by going through each one
of these communications to see that they’re all
professional, there are no personal comments
given....
THE COURT: Would – would it save time if we
concentrated on the five, first of all?
MR. MAE: I – I – I can do that, Your Honour.
And then....
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THE COURT: And then come back to the – those
others that Mr. Danilov may want to suggest
otherwise. And perhaps he can review those over
the lunch hour because you have quite a few
documents I think.
MR. MAE: That – that’s a capital idea. I was
just about to suggest that, Your Honour. He – he
can take the post it notes and – and flag them to
see if he can ascertain a malicious comment.
THE COURT: Because your focus is on the five
that are in the pleadings.
MR. MAE: Absolutely. That – that – that’s not
my focus, that’s the case.
THE COURT: That’s what they’ve pleaded.
MR. MAE: Yes.
THE COURT: They’ve pleaded five and I think we
should focus on those.
MR. MAE: Absolutely, Your Honour. I’m – I’m –
I’m happy with that.
THE COURT: If Mr. Danilov wants to take us to
other emails upon reflection, he looks them over
over the lunch break, that will – may save some
time.
MR. MAE: Yes. And – and – and if within that
he’s prepared to concede, not having flagged any
of those documents with malicious comments. That
they are all steps in a process, then we don’t
have to belabour the issue.
THE COURT: Those – those might be submissions
for his counsel. But he can certainly look them
over and draw the Court’s attention to any
particular ones that are – that are assistance or
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that he wants to comment on. Is that fair, Mr.
Danilov? You’ll take a look at these.
A. My question is can – can I refer to our
production because I’m not familiar with the – the layout of
defendants’ collection.
MR. MAE: He can refer – refer to what he wants,
Your Honour. But they’re all there in
chronological order.
THE COURT: I understand that they’re similarly
laid out in his production.
MR. MAE: Candidly, Your Honour. I skipped
through their production, I’m going to be very
candid. If – if they’re duplicates, fine. Just
by way of explanation, the documents briefs all
arrived at the same time. The plaintiffs did
arrive first while we were preparing ours because
there was no agreement as to the content, so
there may be duplication in – in those documents.
Obviously I’ve flipped through them, but – in
mine, you know, I can – I can tell you they’re
all in chronological sequence.
THE COURT: So there’s nothing there that should
come as a surprise to him?
MR. MAE: No – no, Your Honour.
THE COURT: But he’s certainly welcome to look at
his own...
MR. MAE: Ab – ab – absolutely.
THE COURT: ...productions if he wishes.
MR. MAE: Absolutely. And I hope I don’t end up
with egg on my face.
THE COURT: All right. So why don’t we – Mr.
Mae, you sometimes use idioms which are helpful
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to the court, but for people that are getting
translated to Russian...
MR. MAE: Oh yes.
THE COURT: ...egg on face and....
MR. MAE: I’ll say – I’ll – I’ll rephrase it then
for the translator. I hope I do not end up
regretting it.
THE COURT: All roads lead to Rome. These –
these are difficult for people to understand if
English is a second language.
MR. MAE: That – that is true, Your Honour. I
apologize.
THE COURT: Absence makes the heart grow fonder.
MR. MAE: Yes.
THE COURT: These – these are difficult concepts
in translation. They’re – they’re – I’m sure Mr.
Danilov has no problem with them, he’s been...
MR. MAE: Yes.
THE COURT: ...in Canada for many years.
A. Sometimes I have.
THE COURT: But it is English as a Second
Language and certainly for the defendants,
English is a second language, perhaps even for
Ms. Skybin, I’m not sure. And so I know these
roll off your tongue quite easily and we all tend
to do that, but if – if you will...
MR. MAE: I – I appreciate that, Your Honour. I
mean certainly...
THE COURT: ...recognize that.
MR. MAE: ...I will – will use less phrases as –
as it were.
THE COURT: Okay.
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MR. MAE: That – that’s helpful. Thank you, Your
Honour.
THE COURT: So we’ll return at 2:15. That gives
Mr. Danilov enough time to review the material.
And we’ll continue throughout this afternoon.
Tuesday at four o’clock I have a meeting in the
building with other stakeholders, so on Tuesday
I’m going to perhaps stop just a bit before four
o’clock.
MR. MAE: Yes. And would it be possible maybe to
start a little earlier on Tuesday? I know we’re
starting at 9:30 now, sorry Madame Registrar and
Madame Reporter and the CSO. I see them all
glaring at me.
THE COURT: And the interpreters.
MR. MAE: And the interpreters. Would – would
just even 15 minutes earlier help? It may on
accumulative basis.
THE COURT: I think we should stick to 9:30, but
we can shorten the lunch hour to try and save
time there. So instead of an hour and fifteen
minutes, we can take an hour or perhaps less and
we can achieve some time...
MR. MAE: Thank – thank you, Your Honour.
THE COURT: ...as we move along.
MR. MAE: Right. As I am mindful of wanting to
get to the end of this and sadly in a case of
this nature where there’s so many documents and
twists and turns, that it – it’s gonna take
longer than everybody estimate.
THE COURT: All right. If you want to talk to
Ms. Chapman about any issues too – about the
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issues ahead of us that might shorten the
proceedings, I’ll certainly encourage counsel to
have those discussions.
MR. MAE: Thank you, Your Honour.
THE COURT: So return at 2:15.
R E C E S S
U P O N R E S U M I N G :
THE COURT: Good afternoon. Yes, Mr. Danilov,
you can return.
MS. CHAPMAN: What Mr. Danilov has with him is a
copy of Exhibit 1(A).
THE COURT: 1 – 1(B).
MS. CHAPMAN: Oh sorry, volume 2 – 1(B), that he
I believe tabbed over the lunch period in
relation to Mr. Mae’s questions.
THE COURT: All right.
MR. MAE: Q. And – and which tab numbers we....
A. One second. So let’s start with Tab 1-3-9.
I just spent 10 seconds going through couple emails you already
mentioned before just to – to get the full picture. So it’s Tab
1-3-9 and page 8-9-0.
Q. Which is the email we looked at.
A. Yes, we already discussed.
Q. Yes.
A. And I already mentioned that the sentence I’m
referring to check and see the defamatory and by a couple of
reasons my issues – I will tell that in a second. The last
sentence in the second paragraph which is, “Now it’s a full-
blown abuse with physical attacks, threats and financial
robbery. They cut the T.V., internet and deduct money from
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their pension giving them list of what they charged them for.”
So this is defamation and - first of all it’s a lie and Yana
Skybin knows that. And second of all, it’s here for wrong
reason. It’s not to support Nikityuks, it’s to support their
attempt to obtain Social Housing on priority basis.
Q. So that’s what you interpret that to be.
A. Yes.
Q. And that’s not a correct interpretation, sir.
So please continue.
A. Then it’s 8-9-1, last sentence in second
paragraph, “The situation at home escalates but they are still
managing to stay low and out of harm reach. It may all change
dramatically though.”
Q. It actually says drastically. And....
A. Drastically – I’m sorry, yes.
Q. And for the record that’s an email of October
the 14th, 2011 from Yana Skybin to Anthony Cuthbert (ph) the
lawyer.
A. Yes. And I’m saying that this is the lie,
Yana Skybin knows that and again, the statements are here for a
wrong reason. It’s just to attract lawyers attention to the
events which never happened.
Q. So....
A. This....
Q. Sir – sir, I have a question now to ask on
that.
A. Yes.
Q. That’s just – that sentence you referred to,
it’s just a statement of fact that has been given to Yana which
she’s passing onto the lawyer.
A. Yes.
Q. That’s all it is.
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A. I know, but you’re not supposed to lie to
someone else’s lawyer. It’s not your job.
Q. They weren’t lies. So please – please
continue.
...OBJECTION BY MS. CHAPMAN
...SUBMISSION BY MR. MAE
THE COURT: Well you’re making your comments
though that it’s a lie – or that it – you will
have a chance to make submissions.
...SUBMISSION BY MR. MAE
THE COURT: I – I understand what your – your
position, you don’t....
MR. MAE: Certainly, Your Honour.
MS. CHAPMAN: And I think the proper challenge
would be by question.
THE COURT: Yes, it sounded more like comments
rather than questions to the witness.
MR. MAE: I’ll – I’ll rephrase it as question
then. Q. You have no evidence to suggest that’s malicious, do
you sir?
A. Maybe I have in some part wrong understanding
of the word malicious. But it doesn’t change the fact that all
those statements are defamatory and some of them, you will see
that they are malicious. We’re – we are not finished yet. It’s
– what’s important here is the whole picture actually and those
separate emails I’m shown right now, they’re just small pieces
of the entire picture.
Q. Please – please continue.
A. Okay, page 8-9-1 and it’s email marked number
5 and we already discussed that before the break. It says, “Hi
Anthony, I am waiting for the office of Guardian and Trust –
Trustee to call me back.” And I’m saying that....
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Q. Sorry, sir. Did you say 8-9-1?
A. Well 892 – I’m sorry if I misspoke – 892,
line number 5. And it’s email from Yana Skybin to the same
Anthony Culbert [sic] from CLC. And it says, “I’m waiting for
the office of Guardian and Trustee to call me back.” Which
pretty much proves that before that she called that office and
tell them something. And I’m saying that my wife knows what
that conversation was about. She will testify. Now we are on
page 9-0-3.
Q. Which for the record is a letter from the
Community Legal Clinic addressed to Yana Skybin.
A. Yes, it’s the letter from Community Legal
Clinic addressed to Yana Skybin...
Q. Dated November the 21st, 2011.
A. Yes.
Q. Yes.
A. And I would just like to attract attention to
the sentence which is one, two, three, four – fourth paragraph
from the bottom. And Anthony Culbert [sic] says to Yana Skybin,
“Please know that I will caution Mr. and Mrs. Nikityuk about
making any verbal charges that could be interpreted as
slanders.” It was warning from a lawyer. She was communicating
before...
Q. But, sir....
A. ...that she didn’t do anything about that.
Q. But....
A. And kept communicating with other lawyers.
Q. Let’s look at that sentence again.
A. Mm-hmm.
Q. “Please note that I will caution Mr. and Mrs.
Nikityuk about making any verbal changes”...
A. Charges.
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Q. ...“charges that could be interpreted as
slanderous.”
A. Yes.
Q. So he’s advising his clients, the Nikityuks.
He’s not advising Yana Skybin, correct?
A. No. It’s letter to Yana Skybin.
Q. Well, let’s read it again, “I would caution
Mr. and Mrs. Nikityuk”, it doesn’t say and you or – or you, does
it?
A. But it’s addressed to Yana Skybin, it says –
it’s addressed to Yana Skybin. That’s right on the top.
Q. Let’s read – let’s read the next paragraph
then sir. Let’s put it in context. It says, does it not “I’m
obviously sympathetic and fully realize what we have been
through. I would hate to see their problems exasperated by
vindictive family members.” That puts that in context, doesn’t
it sir?
A. Yes, it puts it in context. And the reason
for that is because Yana Skybin positioned herself as a – an
eyewitness of evidence which never happened. But let’s not
stick to that, we’ll go [indiscernible]....Okay. It’s page 9-0-
8.
Q. Which is Tab 150.
A. Yes, it’s Tab 150. I am sorry and it’s page
9-0-8.
Q. Oh sorry, Tab 151. I thought you said
something else. I do apologize....
A. Yes, 151.
Q. Tab 151.
A. And this is letter from Yana Skybin to that
Bev person.
Q. And which one sir, there were two on that
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page?
A. Six – it’s – it’s marked six on the record.
Q. Yes.
A. And it says, “I just spoke with
[indiscernible], phone number, fax – we faxed him the story of
Alla and Valentin.” But he doesn’t not have an actual
certificate and I would like to point attention to the fact that
[indiscernible] was actually criminal lawyer in Toronto.
Q. But then he’s a lawyer.
A. Yes.
Q. So we...
A. He is a lawyer.
Q. ...agree he’s a lawyer?
A. Yes.
Q. And he’s a Russian speaking lawyer?
A. About that I don’t know.
Q. Okay. Well – but give – given his name, it
would indicate that he may be Russian or of that area descent.
A. I don’t know.
Q. Okay. But he – you would agree he’s a
lawyer?
A. I – I know that it’s criminal lawyer – yes.
Q. Okay. But we agree he’s a lawyer.
A. Yes.
Q. So what – what’s malicious in this email,
sir?
A. What’s malicious is here it’s actually this
story of Alla Nikityuk which has been faxed. We – we – we will
come to that later. It – it will be in the process.
Q. Well....
A. And well the fact that she....
Q. Sir, please – please let me stop you.
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A. Yeah.
Q. You – you – you’re saying about things to
come, but I need to cross-examine you on these things to come.
So if you know something, please say it if you can.
A. Well in a minute, it’s – it just – I want to
go in the order.
Q. Oh things to come in the emails?
A. Emails and other communications.
Q. Okay. I apologize, sir.
A. It’s – it’s all about that. It’s just – in –
in order I don’t want to jump back and forth.
Q. Nope, that’s fine. I just want to be sure
that when you’re saying...
A. Yes, it’s communications.
Q. ...it’s to come....
A. It’s all in communications.
Q. Okay.
A. Yes. So it’s [indiscernible] - Evan
Swaschurf (ph) now and we know it’s crim – criminal lawyer. So
she keeps trying to engage Nikityuks with some lawyer and she
keeps informing those lawyers with her vision on information.
Q. Let – let – let me just ask you some
questions then about that, sir. How many lawyers have you had
in this – these proceedings?
A. I’m not sure, maybe eight.
Q. You’ve gone through eight lawyers. And when
you....
A. Oh you – you’re asking about me?
Q. Well – yes, you. How many lawyers did
you....
A. I’ve had three.
Q. You’ve had three lawyers.
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A. Yes.
Q. And when you first contact a lawyer...
A. Yes.
Q. ...you give them details about the case,
correct?
A. Some – depends – yes.
Q. Because you want to know whether the lawyer
is able to take the case on, correct?
A. Yes, of course.
Q. And that’s what’s happening here.
A. Yes and that’s what’s important. Exactly.
So those details are important and those details provided by
Yana Skybin are very important. So it’s all about that story
which she faxed - and we’ll come to that later. And there is
next page 9-0-9 on the same tab. It says, “We called a couple
of lawyers in Toronto.”
Q. Yes.
A. And little bit further it’s – it’s actually
release who she called, the Scherafems (ph) and Matuchenka
Victor (ph), so those are couple lawyers.
Q. And again, they’re contacting lawyers to
represent the Nikityuks.
A. Yes.
Q. Okay.
A. In – in her own way – yes.
Q. But what’s malicious about that?
A. What’s malicious about that it – it’s inside
that Nikityuks story actually.
Q. Okay.
A. Yeah. Yeah.
Q. Now just while you are flipping through sir,
just to deal with things in some chronological sequence. I’d
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like to invite your comments on Tab 153, the police report. You
just skipped past it.
A. But we are talking about communications,
right?
Q. No we – we – okay let’s – let’s come back to
it then.
A. Yes, sure.
Q. Let’s continue the communications.
A. Sure. I – I actually have some comments
about that.
Q. I’m sure you do sir, but let’s continue with
the emails first.
A. Now it’s Tab 154, page 904...
Q. Which is....
A. ...oh 914.
Q. Oh this is an email from Ruth Miller...
A. Yes, it’s email from Ruth Miller.
Q. ...to Bev at the Barrie Shelter...
A. Yes.
Q. ...carbon copy to Dorothy at Barrie
Shelter...
A. Yes.
Q. ...and carbon copy to Yana Skybin...
A. Yes.
Q. ...dated November 29, 2011.
A. Yes.
Q. Okay.
A. And I’m looking at the third line in the body
of the email from the top and there is sentence over there.
“Jocelyn (ph) says that at present there is no outside proof of
abuse such as police report.” And Jocelyn (ph), I believe it’s
Ontario Works person. That – that was a name – came up several
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times. So it’s – it’s from Ruth Miller to Bev...
Q. Yes.
A. ...and it says, “Jocelyn – Jocelyn says that
at present there is no outside proof of abuse such as police
report.” And you see that Yana Skybin is in cc of that email.
Q. Yeah. Okay. Well....
A. So she knew that there is no outside proof of
abuse.
Q. Well everybody knows that there was no police
report. So how – how is that evidence of malice?
A. Such – such as police report.
Q. How – how is that evidence of malice?
A. Because Yana Skybin knew that all abuse
accusations are a lie.
Q. So you’re gonna keep coming back to that same
point, you’re gonna say that Yana....
A. Yes and I’m to prove with some pieces – you
know, to prove them in the big picture.
Q. Con – con – continue.
A. And now we are on page 915, this is Creeant
[sic] report – client report to Ontario Works and I believe it’s
that client story she’s referring to.
Q. Well – okay. So the – for the record it
says, client report to OW dated November the 2nd, 2011....
A. Yes.
Q. And the first line is, “Me and my wife lived
in Russia.”
A. Yes – it’s – it’s client’s story.
Q. Yes.
A. It’s – it’s – allegedly it’s provided by
Nikityuks in Russian and allegedly it was translated by Yana
Skybin.
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Q. And how – how does this point to malice?
It’s gonna be the same thing, is it? That Yana....
A. It’s gonna be the same thing...
Q. Okay.
A. ...but it’s not. So now we are on page 918.
Q. Which is the next defamatory letter.
A. Yes.
Q. So let’s – tell – tell me what you have to
say about that and I’ll ask you my questions. So for the
record, just so we can identify the document, this is one of the
specific alleged – allegedly defamatory letters, Your Honour.
It is in fact an email dated Tuesday the 6th, 2011 at 1:33 p.m.
from Yana Skybin to Lana Domazar, D-O-M-A-Z-A-R.
THE COURT: Can you just give me the tab numbers
again in the different....
MR. MAE: In – in the binder...
A. One fifty-six.
MR. MAE: ...that Mr. Danilov is looking for –
looking at is 156, Your Honour. Q. So tell me what’s malicious
about that?
A. Okay. Starting from the second sentence in
the first paragraph, “They transferred significant assets from
Russia to daughter. The family used the funds to build a home
in Innisfil, invest money in their private funds and business.”
So it sounds like we stole money. Next paragraph, “Primary it
had the form of – of financial fraud and emotional abuse. They
came to use with concerns” – they Nikityuks I believe, “with
concerns over domestic violence. Later they discovered that
their Power of Attorney that they gave to the daughter only
because they did not communicate in English, has been abused
[indiscernible] and equally in the field of finances.” So the
next paragraph down – okay it’s third line from the next
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paragraph, “She sent one cheque” – she it’s Svetlana, “She sent
one cheque through our office with arbitrary amount that her and
her husband came up with to cover the basic expenses for 1.5
month. The couple had a consultation with Russian speaking
criminal lawyer in Toronto” – yeah you were right, he was
Russian speaking, “who said well” – that I would like to skip
‘till the very end – and the three lines of the end of this
paragraph, “From financial point of view, they were involved in
fraud – they – they knew. And at some point the banks may
investigate this issue through – or Revenue Canada.” But this
is not concern for the moment. So I would like to mark here
this sentence about one cheque with arbitrary amount because
further there will be actually a copy of that cheque with that
arbitrary amount and actually have something for them to say
about that. So basically – yes it’s communication with the
lawyer, but Yana Skybin knows very well that it’s all lie and
that’s malice.
Q. Okay well let – now I have questions on that
document now, sir.
A. Yes, sure.
Q. So – so we agree that the recipient of that
email is a lawyer.
A. Yes.
Q. And we agree that the purpose of this email
which is fairly apparent from the subject line that it’s a Legal
Aid application for the Nikityuks.
A. Exactly.
Q. So where – where is the malicious content?
A. Because she knows that we [indiscernible] all
those accusations where she positions herself as an eyewitness.
No – no lawyer would take a case. But – well she has to come up
with something attractive, you know, very interesting – that’s
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the point.
Q. And the contents of that email reflect what
Yana was advised by the Nikityuks, correct?
A. No. At the bottom there is her signature –
Yana Skybin, Settlement Counsel, YMCA Newcomer Services. It
doesn’t look to me that there is something here that Nikityuks
told me or anything like that. She – she positioned herself as
an eyewitness of all this stuff.
Q. First sentence, “I have two Russian clients
who are elderly sponsored permanent residents.”
A. Yes.
Q. So she’s making the introduction...
A. Yes.
Q. ...that she’s acting for two clients.
A. Yeah – but...
Q. Yes.
A. ...but she doesn’t even say that they told me
before or something like that. She positioned herself as she
saw all this stuff herself.
Q. And do you have any evidence....
A. Oh yeah, evidence speaks of itself.
Q. Let me finish my question please, sir. Do
you have any evidence that this email was broadcasted to anybody
else?
A. Of course it wasn’t broadcasted.
Q. Perfect, thank you. So any – anything else
about this alleged defamatory email?
A. About this one, no. But we can....
Q. So you would agree with me, would you not
sir, that the tone of this email is not malicious, there are no
spiteful comments, there are no personal vendettas in it about
what should happen to you or your wife?
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A. To me it is because it’s all not true. Those
accusations which are made in this email, for me, are extremely
defamatory – extremely. And for my wife especially because we
are talking about my wife’s parents. So we can go further. Now
I am on Tab 157.
Q. Which for the record is a fax dated December
the 6th, 2011 to sheer – Soc – Social Housing and it’s a fax
from Alla and Valentin Nikityuk.
A. Yes – yes. I need this email as well
confirmation for another one – is it just under way so I just
like to attract attention to one sentence of this email and it’s
page 920. It’s from Nikityuks, okay. The – the signature is
actually looking very suspicious because of the same font and
layout as Yana Skybin’s signature.
Q. It’s an electronic signature and nobody will
deny that Yana Skybin...
A. Yes.
Q. ...translated to Nikityuks. So – so please
continue.
A. “So our daughter-in-law sent a cheque as a
sponsor to cover period of October 18th through November 13th,
2011. We were not in position to use these funds up until now.
We just cash – cashed this cheque on December the 3rd as we have
no other source of income until the end of December.”
Q. And....
A. My point here is that our – that – well –
Yana knows very well about Nikityuks are concealing their income
and she’s helping them to do that. That’s the whole point of
the story like – they – they’re on purpose of those emails with
defamation statements just to get Nikityuks into Social
Assistance by legal means. It’s wrong purpose and it
constitutes malice.
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Q. And....
A. In my understanding.
Q. So that’s in your understanding.
A. Yes.
Q. But you would agree with me, there’s nothing
in the tone of that letter....
A. But it’s – it’s from Nikityuks. It’s – it’s
not from Skybin, so....Now we’re on page 158.
Q. Tab – Tab 158.
A. Tab – on I’m sorry, Tab 158, page 921.
Q. Which for the record is an email from Yana
Skybin to Cesia, spelled C-E-S-I-A, Green dated December the
15th, 2011.
A. Yes.
Q. And email says, “Alla Nikityuk is a client.
She asked for her pension to be deposited to her new account and
did confirm with the Russian Pension Board that they received
the info through fax. However, when the tame – the time came it
went to her daughter’s account as it used to while they were
living with them. The Russian Board said they did not receive
the fax.” And the second paragraph, “She also gave them a
cheque for the remainder of their September 2011 pension when
they were moving out of October – going out in October. However
when Alla deposited it there was a stop make payment on the
cheque.” So this is actually deliberate messing around with two
different cheques and two different events. It was another
cheque which had a stop payment on it. It was that first
support cheque and Yana knows very well that because she
communicated about that cheque around a lot. This cheque was a
different cheque. It was the remainder of Alla’s pension which
was mistakenly – by Alla’s mistake or Russian board mistake or
whoever’s mistake, was deposited to Svetlana’s account which all
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Russian pension was coming regularly before. But after that
letter, Cesia you said – Green or whoever was that, she started
to bug us with letters and requests to return Russian – Russian
pension to Alla like it was some kind of wrong doing from our
side.
Q. So I have some questions.
A. It – it was all Alla’s mistake and Yana knew
about that.
Q. Number one, you don’t know that Yana knew
about it, do you?
A. She knew because there were a lot of
communications that it’s another cheque was – has stop payment
on it.
Q. Let – let me ask you some questions. That
email Cesia Green, you – you understand and agree that Cesia
Green is a lawyer?
A. Yes, sure.
Q. And she was retained to represent the
Nikityuks.
A. Yes.
Q. And....
A. And we responded to her request and she was
completely satisfied that it wasn’t our wrong doing. But see –
what – what Yana is doing? She – she deliberately twists the
facts to get more attention from the lawyers.
Q. Well sir – sir with respect, you say
deliberately twists the facts, but you don’t have evidence of
that.
A. I think this is the evidence, but – yeah no.
Okay. Now it’s a good one. So it’s 159.
Q. And for the record, Your Honour, this is a
letter on YMCA headed paper addressed “To Whom It May Concern”
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and this is one of the alleged defamatory documents.
A. And it’s on page 923.
THE COURT: Is this – is this a match with number
three, is that where we’re at?
A. Nine twenty-three.
MR. MAE: Yes. Nine – nine twenty-three and....
THE COURT: But is that defamatory statement
number three from you colleague’s evidence?
MR. MAE: I believe it is, Your Honour. Just
check the pleading. It’s actually statement
number two they call it. The – which – it’s –
it’s on page 10 of the statement of claim which
is also page 10 of the trial brief.
THE COURT: I thought you said number two was
page 918 – we dealt with number one and then I
thought we....
MR. MAE: No, Your Honour that the – the December
the 6th email, they actually called it statement
number three. They came out of chronological
sequence in their pleading.
THE COURT: So that it’ll be number three. Now
we’re at number two.
MR. MAE: That’s right.
THE COURT: And the date of the letter again –
glad to see what we’re talking about now.
A. December 20th, 2011. And I believe
paragraphs of that letter, they are numbered on the left. So
I’m referring to paragraph 3.
MR. MAE: Q. And sorry, sir. For the numbers on
the left, those – those numbers were written by you or your
wife?
A. Yes.
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Q. Okay.
A. Yes.
Q. So the original letter is just the typed
text.
A. Yes. Yes. So paragraph says, “I received a
call from their daughter on August the 19th telling me that her
parents are losing their mind by asking to live separately. She
wanted to inform me that if they come to me and ask for help she
want me to know there is nothing going on and that nothing
changed in the house.” This statement is completely twisted,
it’s not true. And my wife will testify what was the true
statement and true conversation. Paragraph number 4, “On August
23, Alla and Valentin” – yes.
Q. No – no, you continue.
A. “Came for an appointment and ask me about the
process of applying for subsidized housing.” So they came for
an appointment and asked me about the process of applying for
subsidized housing. That was the true purpose of that
appointment. “They shared with me that the atmosphere”....
Q. Sorry sir, how – how do you get to that from
that sentence?
A. It’s in the sentence.
Q. They came for an appointment.
A. And asked me about the process of applying
for subsidized housing.
Q. Well that’s what happened. They – they went,
they had a meeting...
A. Okay.
Q. ...and they asked.
A. It is what it is, so I would like to go
further. So, “They shared with me that the atmosphere at home
is unbearable with threats, verbal and physical attacks and
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constant arguments. Their daughter and son-in-law are not happy
with their independence. At that time Alla and Valentin had
access to a car and were driving to school and also went to
places with friends on the weekends.”
Q. All right. Let’s stop there just for one
second. So that sentence there, let’s look at that. That’s not
malicious is it?
A. No, not yet.
Q. But that’s setting – setting the background.
A. Not yet, but let me finish and....
Q. But it’s not malicious.
A. Not yet.
Q. Okay.
A. “Alla showed me her arms and there were
bruises on both arms. On the weekend their granddaughter came
for a visit from Toronto and they showed her the bruises too.
She had a very serious conversation with the parents and then
begged Alla and Valentin to give it a try. Things should get
better she said.”
Q. Okay. So let’s – let’s stop, I have a
question about that. So Yana Skybin is just reflecting what she
was either told or believed she was told, correct?
A. No. She positions herself as an eyewitness.
Q. Well....
A. She says – she says, “Alla showed me her
arms”...
Q. Sir, that’s the first sentence.
A. ...“and there were bruises on both arms.”
Q. That’s the first sentence.
A. It’s eyewitness.
Q. Okay. And she says she is an eyewitness, so
there’s nothing malicious in that.
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A. It – it is because it’s not true.
Q. On the last sentence, we know that Yana
Skybin wasn’t at your house on the weekend, don’t we?
A. We know that.
Q. Yes. And that information there was given to
her by the Nikityuks or that’s what she thought they said,
correct?
A. Yes. Yes.
Q. Okay.
A. Paragraph 5, “At this point I informed Alla
and Valentin that this was a case of abuse and gave them the
printouts of elderly abuse translated into Russian with Google
Translate.”
Q. So what’s malicious about that?
A. It’s not true. Well – it’s – it’s true that
she gave them printouts, yes. But – see the thing is that it
actually was other way around. First there were printouts, then
was abuse.
Q. So that – that’s – what evidence do you have
for that?
A. You will have your evidence when you examine
my daughter on Wednesday and...
Q. What evidence do you have...
A. ...all you have all evidence.
Q. ...to say that those – that elderly abuse
leaflet was given to the Nikityuks prior to August the 23rd,
2011?
A. Probably wasn’t. The thing is that they came
to the birthday party. They told her that they wanted to live
separately, preferably in the Social Housing and well she said
come to appointment on August 23, I’ll tell you what I can do.
Q. That – that’s all speculation on your part.
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A. Yes, of course. Sure.
Q. And it’s wild speculation, isn’t it sir?
A. Not really. So let’s – let’s go further.
Paragraph 6, “The couple did try four months but were back in my
office on September 30th, 2011 saying the situation has been bad
and they are now hiding in their rooms coming out to eat only
when daughter and son-in-law are not around. The threats and
yelling escalated. If the couple ignored the daughter and son-
in-law, they would come into their rooms and continue or block
the door to the bathroom in the morning when they were leaving
for school.”
Q. So let’s stop there then. Let’s break this
down. So that whole paragraph is the statement of facts or
validations, correct?
A. There is no – they are not facts like that.
It – it’s all made up.
Q. But there’s – there’s no personal comment in
there – there’s no maliciousness, is there?
A. No personal comments, but it’s all addressed
to the daughter and son-in-law. See it’s daughter and son-in-
law.
Q. Maybe – maybe you misunderstood when I mean
personal comments, I mean – let – let’s go back to my point of
malice, Yana is not making any personal comments about what she
would see – or what she would like to see happen to you or your
wife, correct? There’s no....
A. If – if you read that sentence for the
context, then yeah you could say that.
Q. Okay.
A. But it’s all in context – it’s all in
context. She positioned herself as an eyewitness of all that,
so it – it – it gives that statement more weight and people
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start to believe those and people know that she’s a settlement
counselor of YMCA and she – at – at the very bottom at the next
page it says, Yana Skybin, Settlement Counsel, YMCA
Simcoe/Muskoka Newcomer Services. It’s very important person.
Q. And it’s on YMCA headed paper as well, sir
isn’t it?
A. Yes.
Q. Yes.
A. Yes.
Q. So then – then – let’s continue ‘cause I’m
still trying to – to find the points of malice.
A. “Their main reason for arguments and
disagreement was money. The couple only had Russian pension as
their source of income in Canada. And the daughter and son-in-
law were telling them they have to pay out of their pension for
more and more things like gas, internet or use of computer.
They deducted money from their pension, they – pension because
they had Valentin’s daughter visit in the summer. And according
to Alla’s daughter, there were more groceries needed to feed
another adult. The son-in-law tried to convince Valentin and
Alla to purchase burial insurance out of their pension money
because they are old and they are going to die. And he is not
going to be responsible for their burial. The children gave the
elderly couple multiple credit cards that they were opened in
their names using the Power of Attorney. The couple gave them
for property and health claim – when they first came to Canada.
The children controlled where the pension was going and also
claimed their income tax return on their behalf saying they are
showing income for the elderly parents and due to this income
they would never qualify for any Social Assistance or services.
And they completely depend on their children. Their children
have sponsored them and now have full responsibility and control
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of their lives.” See how – how she puts bad spin on good
things. You can see that.
Q. Sir – sir that’s your interpretation of that,
sir.
A. Oh yes. It’s my interpretation.
Q. That’s your – that’s your interpretation.
A. Yes. And well go further, “At – at this
point I referred the couple to Barrie Women’s Shelter
Transitional Services and Victim Services and half a dozen
interpreter.” Which is not true because she acted as an
eyewitness. “During the whole time until they left home and
needed the support to other agencies and services.”
Q. Just stop there then, sir.
A. Yeah.
Q. You – you do not agree therefore, that Yana
Skybin was acting as an interpreter?
A. She probably tried to, but – well there were
a lot of stuff about that I would suggest to....
Q. Well let’s – let’s not be shy, say it now
sir.
A. Yeah she’s not licenced interpreter.
Q. She speaks English?
A. I suppose so, I never spoke to her.
Q. She speak Russian?
A. She speaks Russian probably, but I never
heard her speaking Russian. You should – well deal – deal with
all those stuff with my wife because – well she knows better.
Q. But underlying your whole case is that Yana
was a Russian speaking – she spoke to your parents in Russian.
A. In crisis situation, there – there are
organizations which are supposed to provide interpreter and
translator services. You must be licenced to provide those
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services. It must – she must be licenced professional to do
that.
Q. And....
A. And – and – the reason to do that is if – if
you are licence professional, your licence probably cost you
some money. You spent time for validation, you paid something
and if you do something – you do something wrong, then you can
easily lose that licence. If you don’t have a licence, you –
you have nothing to lose.
Q. Sir, yes or no, Yana Skybin acted as a
translator for the Nikityuks?
A. Yes, sure.
Q. Thank you, please continue.
A. “Their daughter called me numerously,
sometimes up to five, six times a day using her phone then
Valentin’s cell phone asking for information, trying to send
threatening message to her parents, trying to find out where
they live, accusing their friends of teaching them how to stand
up for themselves. Often” – I’m sorry, “When I offered her to
seek counselling, she refused saying she just needs to find
them. She does not want to involve agencies.”
Q. And....
A. First of all half of this is not true and –
and another half, again, it’s twisted.
Q. Sir, I appreciate that you’re saying these
things are not true. The – the letters were written, they say
what they say. The issue here is the malice. So where –
where’s the malice in that?
A. Threatening message is the malice. In the
situation when Svetlana’s parents left like in – at 9:00 p.m.
and then didn’t return home, any reasonable person would expect
of Svetlana looking for their parents. We – well – we – we even
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filed a lost person report with police. And I don’t know what
kind of relationship Yana has with her mother, but I think that
for – for Svetlana who just lost her parents, it was quite
normal looking around and asking people do they know at least
anything about her parents or not. And all this nonsense about
sending threatening messages try – trying to find out where they
live and accusing their friends of teaching them – I don’t –
it’s malice.
Q. Well....
A. It’s nonsense – it’s malice.
Q. Sir, you can appreciate that we’re going to
hear evidence from witnesses that support that. You’re aware of
it aren’t you?
A. Yes, sure.
Q. Okay. So please – please continue.
A. A couple students is what you’re talking
about. “A couple of students in our classes have reported that
they have been harassed by the daughter who called them a few
times a day asking for information about her parents. She
threatened the students by telling them she knows their
addresses and she knows they have children, pressing for release
of information about the location of her parents. She wrote to
our agency that her parents are not mentally capable. They
can’t manage on their own. She told the students she harassed
over the phone that her parents are crazy, they are sick.” This
is hundred percent malice.
Q. Well sir, to me it looks like somebody’s just
reporting information. That....
A. Yeah, but if – if – at – at the moment you
imagine that abuse and bruises are not true, you would agree
that it’s malice.
Q. But that – but that’s your fundamental
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starting point because everything is untrue...
A. Yes.
Q. ...it’s all malicious.
A. Yes, it is. Exactly.
Q. Okay. So we’re – we’re looking at the tone
of these letters. So let’s continue because there’s two more
paragraphs.
A. Yeah, “None of us ever witnessed anything to
support Svetlana’s daughter’s claim.” I’m not sure who are
those “us” she’s referring to, but I’m assuming that it’s a lot
of people. “Alla and Valentin have been coming to classes
regularly. Always seem happy. Very friendly, open people.”
Surprise, surprise. “They made friends with a variety of
students.” How about that. “They are loved by the teachers and
staff and anyone that has come to work with them in the past –
in the last few months. They are honest and at all time their
story was consistent and proven by documentation they provided.”
I actually have a question. Why that documentation is not
produced.
Q. Sir, I’m not here to answer questions.
A. Okay.
Q. You’re the witness.
A. Well then it’s just....
THE COURT: Well Mr. Danilov, are you reading a
letter or are you adding your comments as you go
because....
MR. MAE: That – that was a comment, Your Honour.
A. It was a comment, yes.
MR. MAE: And also the editorial, surprise,
surprise, they were additional comments for the
record.
A. Yes. And there was, I believe another one.
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And last – last paragraph, “They are – they are victims in this
unfortunate situation when the family that sponsored them and
was supposed to provide and care for them, turned against them
having used their assets to benefit themselves and have had full
control and did [indiscernible]” – I don’t know that word,
“power over their lives.” So – again, it’s all – it’s all just
false accusations, it’s not true. Yana Skybin knows that very
well and she provides this support letter to Nikityuks with the
only reason because there is no other proof of abuse. There is
no report from – from any professional – no police report, no
doctor report, no social worker report – nothing – there is
nothing [sic] report from any professional. So she positions
herself as that professional, but she is not. And she provides
this defamatory statements in support Nikityuks to obtain
illegally the Social Housing.
Q. Okay.
A. That’s the malice.
Q. So let me ask my questions now then, sir
because this is one of the documents you’re relying upon.
A. Yes.
Q. We know that this document – or we agree that
this document was sent to – to the Social Housing department,
correct?
A. That I don’t know. All I know that this
document says, “To Whom It May Concern.”
Q. Well that....
A. It may be quite a lot of people.
Q. Let’s go to page 300 – sorry 922, the first
page there – of that.
A. Yes, it’s – it’s the only - received that
letter we know about, but there may be hundred of others.
Q. So this is a fax transmission, sir. It’s
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20th of December, 2011 from the YMCA.
A. Yes.
Q. Written by Ruth Miller.
A. Yes.
Q. And it’s addressed to organization Social
Services Division County of Simcoe.
A. Yes.
Q. Okay.
A. And subject is “Request for Internal Review
for Valentin and Alla Nikityuk, Case Number” blah, blah, blah
which pretty much means that it was about the application for
Social Assistance which was – which was rejected at that point
by the way because there were no proof of abuse.
Q. No it wasn’t sir and we’ll come on to that.
A. It was and then – then she started all this
big business with Social Assistance – [indiscernible] all
this....
Q. Sir.
A. Yes.
Q. Let’s continue with my questions.
A. Sure.
Q. So this was sent to the County of Simcoe.
And...
A. Yes, it was to Simcoe.
Q. ...and – and you – you understand of course,
and it’s conceded that it was also supplied to Legal Aid as part
of a Legal Aid application. You’re aware of that, yes?
A. About that I aware. Yes.
Q. Was it sent to anybody else?
A. I don’t know.
Q. Do you have any evidence it went to anybody
else?
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A. It says, “To Whom It May Concern”. It may
easily be published in the internet and accessed in 30 years
later.
Q. Sir, when you’re addressing a letter to an
organization and you do not know the name of the person to which
it is addressed, how do you begin the letter – Dear Sir, Dear
Madame or To Whom It May Concern, correct?
A. Dear Sir, Madame – yes, but usually there is
like to part on the letter which addresses the organization.
This letter is not addressed to any specific organization.
Q. Well....
A. It was, I believe, widely circulated and we
don’t know where exactly.
Q. Okay, sir....
THE COURT: Well I think he’s answered your
question he doesn’t know of any circulation
beyond Simcoe County. He’s acknowledged it was
sent there.
MR. MAE: And the position of course....
THE COURT: He mentioned about the internet, but
he’s – he doesn’t have anything to show us.
MR. MAE: Yes, he’s speculating Your Honour.
THE COURT: So let’s move on.
A. One more. Line 16 – Tab 160.
MR. MAE: Q. One-six – yes.
A. And page 925.
Q. Which for the record is a letter of January
the 13th, 2012 addressed to Joanna – and I’m gonna kill the
pronunciation....
A. Kozakiewicz.
Q. Thank you with that – thank you for that.
And the spelling is K-O-Z-A-K-I-E-W-I-C-Z and she’s a lawyer –
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was a lawyer at Community Legal Clinic.
A. And if that’s what the letter says, yes...
Q. Yes.
A. ...and for the record, it was letter before
we started our litigation, just for the record. So the letter
says in the second paragraph – second sentence, “Alla’s daughter
Svetlana sent a letter indicating she deposits support money for
Alla and Valentin into joint CIBC account.” So that mentions
Svetlana’s name. “Attached please” – at the – at the bottom of
that paragraph, “Attached please find both correspondence from
Svetlana” again “Alla’s daughter and the withdrawal they made
from the joint account.” And third – third time in the second
paragraph in her letter to Cesia Green, “Svetlana explains the
payment of the cheque she issued to her mom and stepfather in
October due to bill she receives from Ontario Work on their
behalf.” So basically Svetlana’s name eventually was mentioned
in some place.
Q. So number one, where – where – where is the
malice and then there’s no – no personal commentary about you or
your wife.
A. In this specific letter no, but what I’m
saying that Svetlana was easily identifiable in all those
letters we were talking before.
Q. And....
A. And this is one point of the piece of story.
Q. And just – just for the record, the letter
begins, “I’m writing on behalf of Alla and Valentin Nikityuk.
I’ve been working with them as a second counsellor and at times
an interpreter.” And then the third paragraph, last three
sentences, “They need to respond” – sorry, “They need to
respond/appeal the decision of the overpayment letter and are
asking for your help. Would you be able to advise what needs to
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happen next?” So – so the purpose of that letter is to seek
legal services.
A. Yes. In the appeal to Social Assistance
[indiscernible].
Q. Yes.
A. She was assisting Nikityuks with – after
their Social Assistance has been rejected by Ontario Works.
That demonstrates the reason for those things. And there is
another one, 165, page 3 – oh I’m sorry, 933.
Q. And for the record, it’s another email from
Yana – or fax from Yana Skybin to Joanna at the Legal Clinic
dated April 13, 2012.
A. Yes and well there are two small things I
would like to attract attention to. It’s paragraph 9 and the
end of it, “They requested to close them as they did not want
Svetlana to manipulate money under their names.” So Svetlana’s
name is mentioned. And paragraph 10, “I will be sending your
letter from Yulia Malycheva, a student who Svetlana called and
harassed in October while looking for her parents.” And my
understanding is that Yulia Malycheva will be witness.
Q. And it’s correct is it not and we can go to
it, but there is a letter from Julia Malycheva.
A. Yes.
Q. In what – you agree that there is.
A. Yeah, there was a letter. ‘Till very
recently, we saw only the English variant of that letter
translated by Yana Skybin.
Q. But you’ve seen – you’ve seen the Russian.
A. Yes, I saw the Russian translation.
Q. And I think certified translation.
A. And I saw the certificate.
Q. Okay.
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A. There are interesting differences over there.
Q. And this letter of course, April the 13th, is
not one of the letters that’s set out in your statement of claim
that – presumably this is just dealing with issue of context?
A. Yes.
Q. Okay.
A. Basically it’s about harassment – Yana
Skybin. So – yes 166 – tab.
Q. And that’s an email from Yana Skybin to
Cristina Fernandes.
A. Yes.
Q. Dated February 26th, 2012.
A. February 28th.
Q. Oh – February 28th. And this is one of the
defamatory emails identified in your statement of claim.
A. Yes.
Q. On page 12.
A. Yes.
Q. Well maybe then sir, to be fair to you,
you’ve missed one.
A. I did leave it to later, but if I missed one
please remind me later.
Q. Well I thought you’re dealing with these in
chronological order, sir?
A. No, I’m doing this with the order they come
and the brief, which I’m not sure it’s chronological, but – it’s
some kind of logical, but maybe not chronological. So continue?
Q. So this is statement number five then.
A. Yes, probably. Paragraph 2, “Pavel and
Svetlana already found out where they live. They harassed
everyone and somehow found out.” That’s not an issue anymore.
So see everyone is quite a lot of people and when Yana Skybin
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has been asked at the examination who – who the heck those
everyone are, she was caught off guard and mentioned two names.
Q. So...
A. Yeah.
Q. ...that question, by in February the 28th,
2012, you and your wife found out where Alla and Valentin were
living, correct?
A. Yes. Yes.
Q. Okay.
A. And we found out not by harassing everyone,
we got a letter from Social Assistance Tribunal with address of
Nikityuks in it.
Q. This is information that was provided to – to
Yana, correct? This is information that was provided to her and
she’s reporting it to paralegal.
A. What information was provided to her?
Q. Well let’s look at paragraph 1.
A. Information that we harassed everyone wasn’t
provided to Yana by Nikityuks...
Q. Sir...
A. ...obviously.
Q. ...sir let’s – let’s put this in context.
Let’s look at paragraph 1 first, “Alla and Valentin read the
letter and adjusted a few things. They want security, so they
want to negotiate and sign an agreement, not that just Svetlana
and Pavel deposit $3,000 every month, not for Pavel and Svetlana
to know for more info only, they want to a two bedroom apartment
and they can’t do that until they are absolutely sure that they
can afford to pay rent.”
INTERPRETER: Sorry, Your Honour.
MR. MAE: Too fast?
INTERPRETER: Just repeat – no.
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MR. MAE: Too slow?
INTERPRETER: No.
MR. MAE: To quiet?
INTERPRETER: To quiet.
MR. MAE: Okay. Do it again. Q. “They want to
rent a two bedroom apartment and they can’t do that until they
are absolutely sure that they can afford to pay rent. Right now
they are at a subsidized place and no one will kick them out.
But a landlord will if they can’t pay.” So – so – so this –
this email is based upon Alla and Valentin reviewing a draft
letter and information is being conveyed to a paralegal
representing them by Yana, correct?
A. Yes, sure.
Q. Okay.
A. But basically information – information she
got from Alla and Valentin it’s – it’s all part of what – part
of two is all her stuff like harassed everyone. Course that
everyone she referring to Nikityuks probably even don’t know.
Maybe – maybe they do, I don’t know.
Q. Sir you – you don’t know.
A. No.
Q. Thank you.
A. “But they are trying to find out how much
they pay for rent, et cetera” - which is actually in sponsorship
agreement it’s my comment “as they want to report that to CRA.
No one releases this info to them and yesterday Alla and
Valentin received the registered mail from [indiscernible] with
all their pension receipts, medication receipts and investment
statements for 2011 without any further explanation or letter
attached.” It was actually letter attached with explanation.
“I assume they want them to declare this on their income tax
return for 2011.” Yes, we – my comment is yes we – we – we did
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want to do that.
Q. And there’s nothing...
A. But they didn’t.
Q. ...but there’s nothing malicious in that,
Yana making that assumption.
A. Yeah there’s assumption – of course there is
nothing malicious about that – sure. “Alla and Valentin have no
access to the investment funds. You indicated in the letter
that they will only file their income tax – they income tax
return correctly. So Pavel and Svetlana need to know that the
investigation might occur due to the fact that they are
withholding” - I believe “they” are Danilovs “they are
withholding those investments and have not shared this info –
info at the decision making stage. Ultimately, they did not
involve Alla and Valentin, but rather controlled their finances,
kept them uninformed and took advantage of their situation. No
English and knowledge of Canadian banking system.” So my saying
here is that Yana actually knew the entire family situation
since 2009. She was real familiar with the family, with the
situation with the family, with financial arrangements – and
Svetlana will testify about that. And all she says here – well
she might saying that on behalf of Nikityuks, but she knows very
well that it’s not true. So...
Q. So again...
A. ...that’s the point of the matter.
Q. ...we’re just circling back to your
fundamental position is...
A. Yes.
Q. ...everything she said, because she
apparently knew all it to be untrue, is malicious.
A. Yes.
Q. So before you flip, I – I have questions
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about this.
A. Sure.
Q. So we agree, do we not, that Cristina
Fernandes was retained to act as a paralegal providing legal
services to the Nikityuk, correct?
A. Yes. Yes.
Q. And we see from this email header, it’s not
copied to anybody else...
A. Yes, it’s not copied to anybody else.
Q. ...and you have no evidence that anybody else
has seen this email other than within these proceedings.
A. Yes, but....
Q. And....
A. Fernandes Paralegal, they – they saw that
email which is not true.
Q. And – and the purpose of this email was in
the process of dealing with those legal services.
A. I think so.
Q. Well it’s fair....
A. Like there – there is actually a – a bunch of
other emails in somewhere in – in the file – correspondence
between Yana and Cristina Fernandes I believe where Yana
drafts....
Q. No this – this is the letter – this is it,
sir. If you go back to the first paragraph, they have read the
letter and adjusted a few things. Cristina Fernandes...
A. Yeah so....
Q. ...you will appreciate provided at draft
letter....
A. So she – she drafted the letter...
Q. Yes.
A. ...and Alla and Valentin adjusted it.
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Q. There you go, thank you sir.
A. Thank you.
Q. And what actual loss do you say that you’ve
suffered as a consequence of this or any of the other
communications you’ve identified so far?
A. You mean damages?
Q. Well actual loss. Can you attribute any
actual loss to any of these emails?
A. I don’t have to do that for defamation
writing.
Q. I’ll ask the question again...
A. Yeah.
Q. ...what actual loss do you say you suffered
as a consequence of this or any of the – the other letters that
you’ve identified.
A. Financial loss – or what kind of loss. There
is lot of loss over here. Broken family for instance and well
five years removed from our lives and - well all of this
frustration and – well lot of stuff which is coming from
defamation. Not everything can be expressed in dollars, you
know. Life is much more complex.
Q. Okay. So – any – anything else?
A. Yes, a few things – a couple to be exact. So
the next page is 936. And it says – and again it’s from Yana to
Cristina for record. And it’s Friday, April 13th, 2012.
Q. And the subject matter is “Info from
Nikityuk”.
A. Yes, it’s info from Nikityuks.
Q. Yes.
A. And it’s – well it’s – one of the document in
combination of two or three and they all are here, so it’s –
it’s fast. “Valentin received his access card from CIBC which
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shows that they did not access to that account – that account
until they’ve been told they have a joint account with the
daughter where their pension was being deposited.” It’s just
[indiscernible] - just for the record, she’s referring to the
joint account Valentin – Valentin and Alla Nikityuks were aware
since 2005. It’s the same account. But....
Q. But she’s providing information to the lawyer
based upon information given to her by the Nikityuks.
A. But – but she knows very well that it’s a lie
and I’ll show you in a second. It’s just to mislead the
lawyers. See the purpose of this mail is to mislead the lawyer.
To get the lawyer on board – to get the lawyer retained.
Q. So you’re suggesting that’s the case.
A. What?
Q. You’re suggesting that’s the purpose.
A. No, I will show you.
Q. No, sir - answer my question, you’re
suggesting that that’s the – the reason.
A. Yes.
Q. But you have no evidence to show...
A. In a second.
Q. ...that was the intention. You have no
evidence to show that was the intention, correct?
A. Well there should be some logic here. If –
if she sees a document and she sees that a document prove
exactly the opposite, but she tells the lawyer who has no idea
what is actually happening that it’s true, which is not true and
she knows that very well....
Q. Sir – sir, firstly I’m gonna ask you some
more questions. Number one, Yana Skybin is not an accountant,
correct?
A. I have no idea. She’s a lot of things – she
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claims to be.
Q. And she’s not a lawyer, correct?
A. I don’t know. Maybe she is without a
licence, but maybe she isn’t.
Q. And in this process she is helping the
Nikityuks obtain legal representation, correct?
A. I suppose so...
Q. Yes.
A. ...yes, that’s maybe correct – yes.
Q. So....
A. So just two left. So the next one is page
945, it’s I believe Tab A – or subtab A on the same tab. And
this is actually that proof she’s referring to, it’s in new
Valentin’s advantage card she just got from the bank and it
says, “The name, Nikityuk, Valentin. Number account holders,
one.” So this is access card to some new Valentin’s bank
account. It’s not access card to – he says he lost or didn’t
know about and he claimed that he has joint access to – to that
account just now. So it’s completely about different account
actually, not about that joint account and he knows that because
well – well – supposedly she’s not an idiot, right?
Q. Maybe she made a mistake, sir? Have you
considered that – a good faith mistake?
A. To make a mistake with this simple – no, she
knew very well. She assisted Nikityuk to open that account.
And of course she was present there as an interpreter or
translator or both or that or maybe – I don’t know, next of kin
or who else she was there. But she knew very well what she was
doing at that appointment at Scotiabank. It’s in her log
actually. She opened the bank account and she had been told not
to close another one because it’s – it’s the only way for us to
support Nikityuks and they couldn’t have that – that social
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income at the moment. So she knew very well what that – that
card was about and she definitely didn’t prove – definitely
didn’t prove that Valentin received his access card from CIBC
just now and before that he didn’t have access to that joint
account opened for them 2005. It’s – it’s completely misleading
of the lawyer.
Q. So if – if she accidently mislead the lawyer
- let’s just assume that you’re right for one second, if she
accidently mislead the lawyer, how is that malicious if it was
accidental?
A. It wasn’t accidental. That’s the point.
Q. So that’s your – your position.
A. Yes. Yes, exactly.
Q. It was intentional.
A. And I’m done.
Q. Are – are you done?
A. Yes.
THE COURT: That was page 945, is that where we
are at in that discussion? That’s what I wrote
down, but was that correct?
MR. MAE: That page we were 936 and then Mr.
Danilov took us to 945, Your Honour. Q. So there’s one more
defamatory statement in your statement of claim which is a
letter of January 20th, 2012. You haven’t addressed that yet,
sir.
A. Probably it’s missing in our brief, maybe
it’s in yours. I’m not sure.
Q. It – it’s – it certainly is in my brief.
A. Well if you could find it.
Q. Lucky for you.
A. Yes.
THE COURT: I see it’s 3:30. We – we still have
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the statement number four that you’re turning us
up to. That’s – that’s what you’re gonna address
right now.
MR. MAE: Yes the statement – we – we – if Your
Honour’s thinking about a break.
THE COURT: In the statement of claim it’s...
MR. MAE: Statement....
THE COURT: ...it addresses number four.
MR. MAE: That’s correct, Your Honour.
THE COURT: You’ve dealt with the other ones.
MR. MAE: Yes.
THE COURT: So before taking a break, how much
more time are you going to need ‘cause I’m just
wondering if we should call it a day at some
point?
MR. MAE: I’m – after we get past this, Your
Honour, I’m cautiously in the home stretch. I
have some questions about some wrap-up matters,
but I’m – I’m cautiously we – we will get this
done by the time your normal close of
proceedings.
THE COURT: All right.
MR. MAE: He says with his lips pursed tightly
and his fingers crossed.
THE COURT: Well your promises...
MR. MAE: Are hollow.
THE COURT: ...you don’t want to use idioms.
MR. MAE: Yes.
THE COURT: You confuse the parties. I’ll – I’ll
take a break. I’d like to get this – there’d be
some advantage in finishing early today, but if
you can finish your cross-examination today, I
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think that would be useful and then Monday we can
deal with any re-examination that may be
necessary and move on with other witnesses.
MR. MAE: Yes, Your Honour.
THE COURT: Sorry I should Tuesday, don’t come
back on Monday.
A. Mon – Mon – Monday’s holiday, right?
THE COURT: Yes.
MR. MAE: Yes.
THE COURT: So I’m going to adjourn and hopefully
when we come back, Mr. Mae, you can complete your
cross-examination.
R E C E S S
U P O N R E S U M I N G :
THE COURT: Yes, Mr. Danilov, you can come back
to the witness box.
MR. MAE: Q. And the – so we’re just about to
deal with the last defamatory letter statement number four,
there’s a copy of it in my document which is Exhibit 3(A), so
volume 1 and it will be tab, I believe, D10.
A. Yes.
Q. You have that in front of you, Mr. Danilov?
A. Yes.
Q. And for the record, this is a fax on YMCA
headed paper dated January the 20th, 2012 addressed to Lana
Domazar, D-O-M-A-Z-A-R, who is a lawyer. You have that in front
of you sir?
A. Yes.
Q. And this is one of the defamatory statements
and we also see that there’s a fax transmission slip to the same
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fax number, correct?
A. Yes.
Q. Okay. So take – take me through this and
tell me what’s defamatory and what’s malicious about it.
A. Mm-hmm. Okay paragraph 3 – I mean third
paragraph from the top, “Their daughter, Svetlana Danilova, has
filed the income tax return on their behalf and this is the
first time they see the statements.” She knows this is not
true. At least she was well aware of the fact that Valentin
invited his daughter in July – August, 2011 and she’s well
familiar with the procedure how to invite visitors. She invited
her mother and – well she knows that if you invite someone you
need to provide at least some kind of income proof. So when she
says that first time they see the statements, she knows that it
cannot be true if she’s not, you know, like....
Q. Sir, just let me ask you a question there.
This is referring to Canada Revenue Statements for 2008, 2009,
2010.
A. Yes.
Q. And this letter’s written in 2012.
A. Yes.
Q. So please continue.
A. There should be also – it – it’s 2012, like
there should be 2011, right and she knows about 2012.
Q. Sir....
A. It cannot be first time when they see.
Q. But that’s – that’s your opinion, you have no
evidence to support that, correct?
A. I have evidence to support that she knows
that Valentin invited his daughter. She knows that.
Q. But you don’t have evidence to support the
comments you just gave.
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A. Yeah, well very simple logic between things.
Q. Oh simple logic. Okay.
A. “According to Svetlana, Alla and Valentin
invested their money in her and her husband home business.” I
don’t know what that home business means, but probably family
business she meant. “She reports investment income on their
income tax return. They never received a penny from either
return or federal/provincial benefits began issued in their
names. The only income they had access to was their foreign
pension reported under line 115 of their return.” She knows
very well that it’s a lie and she makes these statements with
the only purpose to [indiscernible] Nikityuks to illegally
obtain Social Assistance. And well the reasons for that – that
– there plenty of them actually and – well first of all, it’s
general fact that to receive a tax return you need to pay tax
first. It’s very generic and as a settlement counsel she must
know that, otherwise she’s incompetent. The only income they
had access to was their foreign pension. She knows very well
it’s not true because she’s familiar with situation of the
family since 2009. And my wife will testify about that. “When
we looked into accounts that were open in their names at the
bank, they discovered they had investments in their names at TD
Waterhouse. There was still some money in those account in
October 2011. Once they left their daughter’s house and moved
into a subsidized housing, they went back to the TD Waterhouse,
I was present as an interpreter and met with branch Manager,
Mike Groulx (ph). He said they come swearing to the many money
has been moved. They closed those accounts. They also had a
joint chequing account where the daughter and son-in-law moved
money through. That – but that account was also closed by their
request. They did not want to have their names in accounts they
had no access to or knowledge of.” So well keeping in mind that
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the entire story from the Nikityuks is not true and she knows
very well about that. All this [sic] things she mentions in
this paragraph it puts much intrusion in family finances.
Q. So – again – again, sir I’m just gonna ask
you a bunch of questions and I’m assuming you’re gonna give me
the same answers. This – this letter, the contents you’re
seeing, have a [indiscernible], a background that you say Yana
knew was false.
A. Yes, it was false and this letter made with
the only purpose to repay the lawyer under false circumstances
and she knows that – well those circumstances now false, that
abuse legations are not true and therefore she simply misleads
the lawyer. That’s it.
Q. So – so is that it? So that’s this in total?
You have no proof that this fax has gone through any other third
party.
A. I suppose it didn’t.
Q. Yes. Okay.
A. I don’t know that, but....
Q. And....
A. No, I don’t have it.
Q. Well and I assume, perhaps it’s wrong for me
to assume in cross-examination, but the questions I asked you
earlier on with respect to specific losses, it’s – it’s gonna be
the same.
A. Well I can add some things like reputation
for instance and other stuff, but well...
Q. Well....
A. ...see it’s all coming with defamation word,
so...
Q. But – but this letter...
A. ...you do the math.
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Q. ...sir, went to a lawyer representing the
Nikityuks, correct?
A. Yes.
Q. Okay.
A. And well see we – we – we don’t have
harassment claim anymore, so I cannot say that it’s
harassment...
Q. Okay.
A. ...but it still misleads.
Q. So let’s move on, perhaps my friend can
actually help address this, this was something I raised in the
opening, Your Honour. There’s a – a negligence claim set out in
the statement of claim at paragraph 56, again it’s Yana Skybin
and my reading of Justice Corkery’s judgment is that that’s been
dismissed, but it still remains in the pleading.
A. My understanding is that negligence claim
wasn’t dismissed.
THE COURT: Just let Ms. Chapman deal with this
issue. Mr. Mae, you could help us by if you
wanna just quickly point out the appropriate
paragraph in Justice Corkery’s decision.
MR. MAE: Yeah – yeah – yes, Your Honour. It –
it’s in the trial brief at Tab 10. And it is at
paragraphs 80 and 81, Your Honour. And – as – as
I reviewed those two paragraphs Your Honour, in
conjunction with paragraph 107, the candidate
Yana Skybin in paragraph 80, the claims at
paragraphs A and B, are not separate clauses of
action. And then paragraph 81 provides that C,
D, E and F are dismissed. And then we look at
107, specifically Justice Corkery spoke of the
negligence claims against the YMCA, not – and
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Yana Skybin. And....
THE COURT: And Yana Skybin, this gentleman has
to answer this – Ms. Chapman - she prefer to
consider on the weekend, if that’s not
appropriate. Unless you have any....
MS. CHAPMAN: That would be my comment because
the paragraph numbering has changed from the
version of the amended claim that Justice Corkery
would have been referring to in this decision,
so....I kinda feel on the spot to...
MR. MAE: Okay, Your Honour...
MS. CHAPMAN: ...to advise the Court if that is
in fact the same paragraph.
MR. MAE: ...if I can – if I can assist my
learned friend, paragraph 79 of Justice Corkery’s
judgment actually sets out exactly what was in
paragraph 52 and it’s identical.
THE COURT: So your overall position is that
there’s no negligence claim, so you figure this
misguiding, is that your point?
MR. MAE: That’s correct and no evidence has been
read on that. So I – I’m – I just don’t want to
find later on, Your Honour, that some – something
comes back....And of course we have another
plaintiff, so I can address it then. So it may –
may be for the sake of expediency, given the fact
there are two plaintiffs, I’m not gonna address
the issue with Mr. Danilov, I’ll address it with
Mrs. Danilov [sic] should the case be pursued.
THE COURT: All right. That’s fine. That’ll
give Ms. Chapman a chance to consider it....And
maybe she’ll indicate on Tuesday whether it’s a
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live issue or not that you need to explore.
MR. MAE: Thank – thank you, Your Honour. Q.
Just like to move and move on now. Just general question about
your damages claim. There – there is no evidence from an
accountant or actuary being provided by you in these
proceedings, correct?
A. Account or what?
Q. An actuary. An actuary is like a – a more
senior accountant, somebody who deals with these type of tables.
You – you have no expert evidence, correct?
A. No.
Q. Okay. With respect to the lost investments
claim, you were....
A. There were several, which one of them?
Q. Well we can deal with them all with the same
question sir.
A. Okay.
Q. You’ve produced no evidence to show that you
entered into any contract to purchase the stock which you claim
you missed out on, correct?
A. Which one? I am back to the same question
because there are several claims about stocks.
Q. I’ll – I’ll ask the question again. What
with any of the stock that you claim you lost, you have not
entered into any contract to buy that amount of stock, correct?
A. I was going to and I sent Mr. Bornmann the
metification [sic] in advance about that. But like today I was
going to buy this stock, but I wasn’t able to because I didn’t
have money for it.
Q. But – but you have not entered into any
contract - but that’s time to buy the stock, correct?
THE COURT: I think that’s been answered.
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MR. MAE: Yes. Okay. Thank you, Your Honour.
Q. And all of the losses that you claim in relation to the
stock are just paper losses, they’re speculative, correct? You
– you didn’t actually lose that money?
A. It’s – it’s not that easy because let’s say
when I claim that I would buy CUF, the UN stock, then actually I
had that stock. But not that much as I would have if I had more
money. For instance....
Q. But – but again, you – I – I won’t push it,
but the evidence is there, with respect to the certificate of
pending litigation...
A. Yes.
Q. ...you’ve never brought a motion to rescind
the certificate of pending litigation, correct?
A. We’ve been self-represented at the motion to
defend, Mr. Bornmann’s motion for CPL and yeah – we – we didn’t
bring a motion to discharge it. Simply because Justice
Eberhard, in her endorsement, suggested that we go for early
pre-trial and well at that point motion simply didn’t make any
sense. But then Mr. Bormann started this delay tactic and –
there we are. ‘Cause we expected that early pre-trial the same
year as motion for CPL and well it was supposed to be like in
four months or so, not in four years.
Q. But – so the short answer is no you did not
file a motion to rescind...
A. Yeah.
Q. ...the CPL.
A. If – if – if I knew that it – it’s gonna be
that long, yes we would bring the motion for CPL and we actually
were going to with our previous lawyer.
Q. And you have never brought a motion to sell
the property to pay the proceeds of sale into court, correct?
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A. No we didn’t.
Q. Okay.
A. Actually want to keep this house, I don’t
want to sell it, but....
Q. And you’ve been represented by several
lawyers in this litigation, Mr. Timokhov?
A. No, first was NLC Lawyers, Reggie Napal (ph),
then Mr. Timokhov and then Ms. Chapman.
Q. And can I turn you to document 31 of the
damages brief which I believe is Exhibit...
A. It is [indiscernible] book....
Q. ...4 – yeah Exhibit 4.
A. What tab please?
Q. Tab 31.
A. Yes.
Q. For – for the record, this is a letter from
NLC Lawyers dated October the 18th...
A. Yes.
Q. ...2012 and it’s addressed to Mr. Bornmann
and a copy was provided to my predecessor, Mr. Bigioni (ph).
A. Yes.
Q. And NCL Lawyers were your lawyers?
A. Yes.
Q. And we see from this letter if we go to the
third paragraph which identifies that you divide an income from
dealing with stock and he refers to stock in company American
Capital Agency Group.
A. Yes.
Q. He says then starting at the end of the last
line, “But as a result on the advice I have to give them, not to
encumber the property.” So you received legal advice from Mr.
Napal, N-A-P-A-L, not to encumber the property.
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A. Yes.
Q. And....
A. Not to encumber the property means that –
because – because of CPL, if – if CPL was coming then please
don’t do with your property because probably you will have some
trouble after that. So we – we – we didn’t encumber the
property.
Q. But you didn’t bring a motion to rescind the
CPL.
A. No, I did not...
Q. We’ve already established that sir.
A. ...no we didn’t.
Q. Okay.
A. There were many – many reasons for that.
Q. And....
THE COURT: And just while we’re going through
it, what was the date of the CPL registration?
A. February 19th – something like that – 2013, I
believe, but Mr. Bornmann knows better.
THE COURT: It may be in the Trial Record, I’m
not sure.
MR. MAE: It’s – I don’t believe it is in the
Trial Record, Your Honour. Oh it is.
MS. CHAPMAN: Oh it is. Yeah.
MR. MAE: February 19th, 2013 Your Honour. And
it’s at Tab – Tab 7, Your Honour. Q. So you had a falling out
with Mr. Napal, didn’t you?
A. What? I’m sorry.
THE COURT: I’m sorry, but should you really be
talking about solicitor client issues?
MR. MAE: Actually – actually yeah – yes, Your
Honour. It goes to the issue of maliciousness
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and vindictiveness. I have a – an exhibit which
I’ve provided to my friend which is a posting
that Mr. Danilov put publically on Facebook about
Mr. Napal. And it’s – it’s something that is
important to address particularly given the case
regarding the maliciousness and vindictiveness.
THE COURT: Ms. Chapman have you seen this?
MS. CHAPMAN: Well I – I have seen this, but the
case doesn’t address Mr. Danilov acting in a
malicious way, so I’m not sure what the relevance
is.
MR. MAE: I think – I think it’s highly relevant.
It gives the whole plaintiffs’ case now against
my friend based on malicious and vindictiveness.
He’s been through a bunch of documents not being
able to identify anything and this is a prime
example of what something malicious would be.
THE COURT: You think of a lot of examples, but
this – what you’re saying is this shows that he’s
been malicious in another situation and therefor
the Court should use that as some sort of
analysis.
MR. MAE: Absolutely, Your Honour. It – it – it
sets a bench mark in my respectful submission.
That – as I’ve already indicated, the whole
defamation client against my client relates to
those issues and in – in this instance, it’s
appropriate because Mr. Danilov has indicated in
some way and not some way....
A. I don’t why you answer the question.
THE COURT: Just a minute, sir. Don’t – you
don’t have to answer it yet. Mr. Mae is still
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permitting his thoughts.
MR. MAE: Yes. I – I – I’ve actually – I just
finished in the – I think it’s – I would suggest
it’s relevant, Your Honour.
THE COURT: Well I’m not satisfied it is because
if I could just use a criminal law analogy,
because a person has a previous criminal record,
we never want the jury to assume that they’re the
type of person that would do this sort of thing.
And here we’re not talking about his own
maliciousness, but you to propose material that
suggests he’s been malicious. This is a good
example. But it also turns into a solicitor and
client issues between these – these parties.
MR. MAE: Well you – Your Honour, firstly I’m not
going to ask any questions about solicitor client
privilege. Secondly, the case – the counterclaim
by the Nikityuks against the Danilovs is in part
shrouded in vindictive behaviour, Your Honour.
This shows the – the mark of the plaintiff.
A. I’m sorry. What’s – what’s being....
THE COURT: Don’t talk until Mr. Mae is finished
his thoughts.
MR. MAE: Yes. I – I would say this is
completely different to prior convictions.
THE COURT: But how does – how does it...
MR. MAE: How does it help?
THE COURT: ...help the court if he’s been – if
your – if this letter would suggest that he’s
taken vindictive steps with respect to his
previous counsel?
MR. MAE: It’s analogous, Your Honour and if – if
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Your Honour isn’t able to be convinced by what
I’ve already said, then I’m not gonna hand it up,
Your Honour.
THE COURT: All right. I’m not convinced.
MR. MAE: Okay. There’s a time to fold on
certain things. Q. Without – without having to look at your
damages brief, your hypothetical damages are based on a deposit
of $100,000. You – you based all of your figures on initial
purchase of investments of $100,000, correct?
A. Not entirely correct. In principle, yes.
Q. Yes. Okay.
A. But the – the thing is that....
Q. Sir, I don’t need an explanation, I’m just
dealing with the hundred thousand dollar figure.
A. Yes.
Q. In – in the test as you had a hundred
thousand dollars...
A. To – to be exact, one hundred and four
thousand.
Q. One hundred and four thousand dollars, okay.
So it would stand to reason would it not, that if you’d invested
to use easy math, take off the zero of $100,000 – if you’d of
invested $10,000 you would have made profits according to
your...
A. Proportional.
Q. ...case, proportional.
A. Yes.
Q. Yes. And did you – did you invest $10,000?
A. No.
Q. No. And if we then go down to a thousand
dollars – and again it would be a proportional gain.
A. No.
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Q. You disagree?
A. The thousand dollars doesn’t work.
Q. So it works at ten grand....
A. The – the minimum reasonable – more or less
reasonable amount to invest in automatic trading software thing
is around $10,000.
Q. Okay. But – so you’ve never invested
$10,000?
A. No.
Q. And you’ve never had $10,000....
THE COURT: Sorry, are you talking about this –
going through damages?
MR. MAE: I’m referring Your Honour....
THE COURT: The actual amount that he invested
prior.
MR. MAE: I’m referring to the damages claim,
Your Honour. The one that comes to about seven
and a half million dollars based on an investment
of a hundred thousand dollars. That’s in the
amended damages brief.
THE COURT: But didn’t he tell us that he didn’t
actually do that?
MR. MAE: That – that’s right.
THE COURT: Hence he would have but for this
situation.
MR. MAE: Absolutely, Your Honour.
THE COURT: So he’s told us he didn’t do that,
but he would have.
MR. MAE: That’s right. And I’m dealing with a
failure to mitigate. Q. So you – you have – you didn’t invest
$10,000?
A. In this specific trading software program,
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no.
Q. Okay.
A. But I did invest in less risky strategies.
Q. And would it be fair to say that you’ve had
$10,000?
A. Not at that point to, you know, to plan to
invest in this kind of thing because – well at – at same time
this litigation process started to get out of control and it was
unpredictable how much do I need next month or month after that,
so I had to keep money available for much less risky strategies.
Q. So you did not then mitigate your loss by
attempting to make an investment?
A. I did invest...
Q. Not....
A. ...but not in that risky strategy.
Q. But that’s the risky strategy that you’re
basing your damages claim on, correct?
A. Not – not entire claim...
Q. Yes.
A. ...but part of it, yes.
Q. The significant part of it.
A. Yes.
Q. Okay. So in fullness I’m going to wrap-up.
Mr. Danilov, I’m putting it to you that the only reason why you
are suing the YMCA and Yana Skybin is because you perceive them
to be a soft target with money.
A. Disagree.
Q. Disagree. I’m putting it to you that you’re
regarding this litigation as an investment in the same manner as
you regard everything else as an investment.
A. Disagree.
Q. In your evidence, I believe on Tuesday - you
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may not recall that far back, you gave evidence concerning a
call from Pratt Homes saying the property was ready and you
decided to keep the property as a good investment because Alla
and Valentin didn’t want to sell. And your evidence, you used
these exact words, “Things change inside a family.” Do you
recall saying that?
A. Yes.
Q. That’s what happened with your family, isn’t
it? Things changed sir.
A. Things change in any family, so yes it’s not
a surprise that they change in this family too – sure.
Q. And on that note, I can say that that’s
something that we agreed with, sir. And those are my questions,
Your Honour.
THE COURT: Thank you, Mr. Mae. Ms. Chapman I
presume that you would like to wait ‘till Tuesday
for the re-exam portion of....
MS. CHAPMAN: Yes, thank you.
THE COURT: And for that I’m sure that the staff
and the Court thank you. So return Tuesday,
we’ll try and start as close to 9:30 as we can.
We’ll take a somewhat shorter lunch hour because
I do have to leave just before four – four
o’clock. And if it helps us through the week by
shortening up the lunch hour a little bit, we can
address that to try to see if we can make up some
ground. We’ll see everyone back on Tuesday,
thank you.
...
M A T T E R A D J O U R N E D
Certification
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FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Lauren Burch, certify that this document is a true and
accurate transcript of the recording of Danilova v. Nikityuk et
al. in the Superior Court of Justice held at Barrie, Ontario
taken from Recording No.
3811_02_20160520_090212__10_MULLIGG.dcr, which has been
certified in Form 1.
__________________________ ______________________
(Date) L. Burch
(Signature of authorized person)
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TUESDAY, MAY 24, 2016
THE COURT: Morning.
CLERK REGISTRAR: Good morning, Your Honour.
THE COURT: Counsel, when we left off on Friday
we were discussing the claims left as a result of
Justice Corkery’s decision. Did you want to deal
with those issues now?
MS. CHAPMAN: Yes, we can. So I had the
opportunity to review that decision and – and
that....
THE COURT: I’ll pass these copies down to
counsel because I’ve highlighted what I think are
the issues that are remaining subject to comments
from counsel. So if I can just go through the
list and then we can make comments if you wish,
counsel. Defamation appears to be still there,
but malice is part – is in point a part of that
acringent (ph) of Justice Corkery’s decision.
MS. CHAPMAN: Right.
THE COURT: So we have defamation. Breach of
contract is out. Inducing breach of contract is
in and that would be in the case of – to
paraphrase his words, if a third party knowingly
or recklessly assists in a false claim pretending
to – to induce a breach. So that aspect of
number three is still there according to his
decision. Number four is gone, number five is
gone. Number six, negligence, that’s what we’ve
discussed on Friday. It appears that with
respect to Ms. Skybin, the decision got rid of
subsections C, D, E and F and he said that A and
B were def – were defiant – were def – sorry were
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dealt with under defamation, therefore they
weren’t falling under the negligence heading.
That’s the way I interpreted it.
MS. CHAPMAN: Yes. And the B would be dealt with
under the inducing breaching of contract,
correct. Yes. I read it as well.
THE COURT: And then with respect to the YMCA,
negligence or potentially it could be vicarious
liability for negligent supervision, so....That’s
how I saw he left negligence with respect to the
YMCA. And number seven, conspiracy, he indicated
there were two categories of conspiracies. The
first purpose was to cause injury and that didn’t
apply in this case. Second would be conduct
that’s unlawful – unlawful and injury to a
plaintiff was likely. So there was some aspect
of conspiracy left to be determined by trial.
And then he eliminated the following claims, 8
through 12, on his list. Does that sound about
right?
MS. CHAPMAN: Okay.
THE COURT: Mr. Mae, Mr. Bornmann, does that
about sum it up as far as you could tell?
MR. MAE: It certainly seems a correct summary,
Your Honour. The – the questions I have of
course and had on Friday – well firstly with
respect to A and B with respect to Yana Skybin,
whether they still actually remain as active
claims or whether - because they’re consumed in
the other courses of action whether the doctrine
of merger simply applies and Justice Corkery’s de
facto made that finding. And secondly, with
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respect to the negligence supervision, of course
we have a statement of claim that sets out
allegations. Justice Corkery’s interpretation of
what they amount to is – is a separate issue and
of course we’re – we’re addressing what’s
pleaded. And what we have now is an amended
statement of claim after that which nearly
repeats what was in it before.
THE COURT: All right. Well there’s certainly
room for submissions at the end...
MR. MAE: Yeah.
THE COURT: ...I just wanted to indicate what I –
what – what are clearly gone and what are still
potentially still in the mix.
MR. MAE: Yes.
THE COURT: I’m not trying to make any rulings on
them at this point, but just so that we’ve
identified what he suggested in his summary
judgment.
MR. MAE: And – and sir – that’s correct, Your
Honour. Certainly as I indicated on Friday, if
the negligence claims as pleaded are being
adduced, I’ll deal with them with Ms. Danilova
rather than Mr. Danilov.
THE COURT: Right. Well I think what Justice
Corkery said that the negligence – sorry yes,
you’re talking about the YMCA.
MR. MAE: That – that’s correct, Your Honour.
Yes.
THE COURT: All right. So are we ready for re-
examination?
MS. CHAPMAN: Yes we are.
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THE COURT: Mr. Danilov, if you’d return to
the stand.
PAVEL DANILOV: RECALLED
RE-EXAMINATION BY MS. CHAPMAN:
Q. Mr. Danilov, I just have a few questions
further to Mr. Mae’s cross-examination. The first is in
relation to the sponsorship agreement. My understanding is that
the undertaking was signed four years prior to Nikityuks
immigrating to Canada?
A. It was signed in October 2004.
Q. And is it your understanding that that
agreement is still valid today?
A. Yes.
Q. Would you – did Nikityuks or the YMCA contact
you at any time for support of Nikityuks?
A. Nikityuks didn’t, YMCA didn’t. Only Ontario
Works did.
Q. And are you prepared to support Nikityuks if
they were not on ODSP or living in Social Housing at this time?
A. Yes. And the only problem with that is that
they don’t claim my support anywhere. They don’t show my
cheques in CRA, they don’t show my cheques in ODSP.
Q. Correct. So you’re providing them some
support now.
A. Yes.
Q. But you would be willing to provide them full
support.
A. Yes. I would be willing to provide them full
support if they show all my cheques as it’s requires [sic] by
law.
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Q. And my last question is in relation to the
joint Scotiabank account, I believe your evidence was that that
account disappeared from online banking.
A. Yes. It disappeared from online banking in
the beginning of October and it took me about two weeks to
figure out what actually was going on. I was calling bank
several times. I was speaking with several representatives in
the bank. And nobody could tell me what exactly – exactly
happened and that – that account was really important because I
used it for transit mortgage payments to Scotiabank. We have
mortgage with Scotia and I have income and other transactions in
different banks – in CIBC and TD. And basically - now I recall
that conversation with Valentin Nikityuk. On October the 17th,
Svetlana actually went to the bank and spoke to the branch
manager and when she returned home, it was in the afternoon.
She told me that it was Nikityuks who closed the account. And
basically I just asked Valentin back then why did you close the
account and he said because. And well I was really upset with
his answer. I didn’t tell him anything else, but – well it was
just the tip of the iceberg actually and then in two weeks later
we figured that they keep closing all joint accounts and TFSA
accounts and – all over the place, that’s where actually I – I –
I got kind of angry because he – when – when you open, let’s say
TFSA account with Nikityuks, it’s like half day job because you
go to the bank – and we did actually went to the bank all four
of us because there were other special conditions for those
accounts, we need trading authorization, we need Russian
translation, we need everything. And we opened two accounts for
them in 2009 because – well in 2009 TFSA accounts were
introduced by the government for the first time and it was very
beneficial for us to have – well TFSA account for all member –
members of the family. And it took approximately half a day
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just, you know, it’s – it’s a big paperwork. It’s about, I
don’t know, 20, 30 pages and Svetlana was translating
everything. It – it was big event. And well when they just
went to the bank and closed it, you were not – not understanding
what that account is for. Well – yeah it – it – it – it did
kind of got some – well got me upset a little – but they left at
that point already. That happened two weeks after they left.
So we – we figured that they were closing all accounts in TD
Bank, in – everywhere basically two – two weeks later after that
conversation on October 17th.
MS. CHAPMAN: Those are my questions for Mr.
Danilov.
THE COURT: Just one point for clarification on
your last point counsel...
MS. CHAPMAN: Yes.
THE COURT: I thought Mr. Danilov said that he
closed out the Tax Free Savings Accounts which
essentially were with his money and I thought he
told us that in-chief and now he’s saying that
they closed them out.
MS. CHAPMAN: No, I believe he’s referring to – I
don’t want to put words in his mouth, but I was
asking about the joint Scotiabank account.
THE COURT: But he went further.
MS. CHAPMAN: Yes, he did.
THE COURT: So sir, I’m just asking you for
clarification on that question. And you told us
earlier that you closed out the Tax Free Savings
Accounts.
A. No – no – no, we withdrew – we withdrew funds
from those accounts. Nikityuks closed them.
THE COURT: Oh I see. He withdrew the funds, but
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they closed them.
A. Yes.
THE COURT: When they closed them, were there any
funds in there?
A. I didn’t know.
THE COURT: All right.
A. Might be a few dollars, I’m not sure.
THE COURT: Thank you for that. Thank you
counsel. That completes your re-examination.
You can step down, sir. Counsel, do you have
another witness at this point?
MS. CHAPMAN: Yes, Svetlana Danilova.
CLERK REGISTRAR: I’ll just have you stand for a
moment.
SVETLANA DANILOVA: SWORN
THE COURT: Good morning. You can have a seat if
you wish.
EXAMINATION IN-CHIEF BY MS. CHAPMAN:
Q. Good morning. Ms. Danilova, I just have to
ask you a few questions regarding your background and education.
Could you tell me about your education please?
A. I graduated from Saint Petersburg State
University and I graduated from the Qualification Program that
is – that is five year, full-time and a – an equivalent of
Master’s Degree here in Canada. My background after I
immigrated included recession development. I have accounting
background, also teaching background and – before immigrating to
Canada in 2003, I worked in Riga, Latvia for Transport
Telecommunication University in Riga, Latvia for over four –
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five years, full-time position - for the last several years in
the role of team lead and the team was responsible for public
website of the entire university. The university was the size
of the – the amount of students like 5,000. But actually to put
myself through school in Russia, I took all possible jobs –
night jobs and summer jobs and I did a lot from dog grooming, a
chef, a cleaner – things like that, yeah.
Q. And how did you come to immigrate to Canada?
A. We were transferred in 1996 – in August 1996
and – and we’re working – we were both working for Transport
Telecommunication Institute in Riga, Latvia but we only had
permanent – we only had temp – working Visa there in Latvia.
And we found information, it was – some information in the
internet, we did research and we decided well – that – well –
first we wanted to hire a lawyer – an immigration lawyer, but
then we decided to – that we can do everything ourselves to – to
put ourselves through immigration – immigration, what we did and
we did it through London immigration office – that was easier
than from Moscow and it was very beneficiary [sic] to live in
Latvia because we did immigration. Through London office it was
much faster than it would be done through the Moscow.
Q. And I understand you arrove [sic] – or
arrived in Canada in 2003.
A. [Indiscernible] July 7th, 2003.
Q. And did you work when you arrived in Canada?
A. Starting from 2003? I started my own
business because I have solid background in the work and I
started all business as a sole proprietorship. The name of the
business was internationaldatingserviceforsingles.ca. I also at
some point in 2004, I believe, I started to volunteer for
charitable organization, Newcomer Services – is the services to
a Newcomer women. I helped them with developing and content
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management of their public website utilizing my experience in –
I reported data to CEO of the organization and I have very clear
understanding how the charitable organization operates and what
are their duties of the Newcomer Service – Newcomer settlement
counsellor. It’s very – there are duties not expanding to
something being the representative of the Newcomers in
organizations. After I volunteer for some time for this
charitable organization, they offered me their contract. So I
worked with them under contract basis, but in 2004 my mother
developed really serious health problem – it was a serious
health problem for my mom because her cancer returned. First
she was diagnosed in 1995 and in 2004 – she had so many health –
health problem – I probably will tell about that later because
it’s very specific topic. And at some point, I just needed
money to send to my mom and I couldn’t – so I – I needed money
right away and I sent her about $600 per month. It was very –
it was very hard for our family at that point, so I took
cleaning job here – and my mom knew about that actually. She
appreciated that very much that I just went to – for emergency
cleaning – cleaning – residential cleaning, I was dealing with a
Russian cleaning company and they knew they could hire me. They
sent me for emergency cleaning to their residents and it was –
that job got paid. I received big gratitude from my job and I
send money to my mom. And I was actually very happy that I
could do – I could do that.
Q. And so why did you not obtain a full-time job
at that time?
A. I actually had interviews in 2004, 2005 – I
had interviews, but I was good – good fit for many positions.
Actually my background – [indiscernible] before I immigrated to
Canada, allowed me to find job here in Canada. I didn’t – it
didn’t require any licencing or any other additional education.
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But I needed to deal with the – all problems of my parents on a
daily basis. I needed – I was so involved that – I very
responsible person and my feeling at that time was that I
couldn’t commit to the full-time because people was going to
rely on me and I was like on-call for my mom. I can fly to
Russia any – at any time ‘cause she needed me and she was really
ill – very bad shape in 2004 to 2005.
Q. And so we heard evidence that you returned to
Russia to assist your mother with her medical appointments, is
that correct?
A. It was not a medical appointment. What do
you refer to – what time? What’s the period? What time period?
Q. Yes, in – in 2004, did you return to Russia?
A. I didn’t return to Russia. It was 2005 – at
the end of 2004 as I told the counsellor, ret – returned and
when my mom went to the healthcare provider available for help
to help, they told her and that she communicated to me over the
phone, that they literally told her in her face. It was
extremely upsetting to her that her cancer is so advanced and
they’ve – kind of no hope and – they said – they told her that
they – this kind of operation – surgery she needed, but they
only do for younger women and she’s too old for that. She
communicated that over the phone to me that you need to do
anything – you did it before for me. In 1995 actually I found a
very good treatment for her. It was radiologist therapy and the
doctor performed the radiology said – they told me that I healed
your mom and she was okay from 1995 until 2005. So in 2005 she
told you need to come because it’s – you cannot do this long
distance, you have to come, you have to – if you network again.
That – that’s what I did. I came and I actually used – really
used the network over here as a professional of my age and it
was a professionals working in healthcare in Russia and I found
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the doctor for – actually for money. It was – I paid for a
hospital bed for my mom and for surgery, for staying in the
hospital – for everything. And it was – of course before I came
to Russia for operation, I did preparation over the phone from
Canada. So I was prepared when I came to Russia in February,
March, I believe, 2005. So all arrangements was done over the
phone and I arranged the surgery for my mom. I was for her
dealing with the surgery all the time like when she was
recovering from surgery, I was spending nights sitting on the
chair by her bed because I couldn’t trust even the nurses in the
hospital – they – that they would be responsible in taking care
of my mom. I – I took all kind of care for her for recovery of
the surgery as well.
Q. And could you tell us a little bit about the
surgery and we understand that you paid for that surgery? Could
you explain that?
A. As I said, it was for – overall, I paid about
$10,000 not including my airfare – flew there whatever – it
wasn’t medical. So overall $10,000 I spent for admittance of my
mother to the hospital for her surgery, [indiscernible] an
anesthesiologist – all – receptionist and – overall it was
$10,000.
Q. And do you pay this in cash? How do you pay
the doctors and the receptionists?
A. I pay – this was the money – yes in cash. I
paid it out of my pocket. Just cash, but previous arrangements
were made even while I was communicating from Canada. So – yes
I paid – I paid cash of course and to this we have – luckily we
have this kind of cash because – and I have house sold
[indiscernible] before we immigrated to Canada - yes. It was –
I was absolutely proud and happy that they had this cash at the
time.
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Q. Let’s move on and talk about your parents,
the Nikityuks immigration to Canada. The sponsorship agreement
is at Tab 24 of Exhibit 1(A). Can we look at that please?
A. Could you repeat it please?
Q. Yes. Tab 24.
A. Yes, this was a sponsorship agreement in
front of me. Yes.
Q. And could you tell – could you tell the court
how you came to sign this agreement?
A. Of course, we’re – we were talking a lot with
my mom – actually first [indiscernible] - you had 2003 when
we’re here. Left Russia – we came to visit my parents before we
moved to Canada. So in 2003, July – or June, we came to visit
my parents. And when they at the train station, when we were
leaving my mom mentioned so we’re – you’re not gonna leave us
here – you are not – you are not gonna abandon us here, it
doesn’t mean anything that you are moving to Canada. And she
said that I hope you take us – you know, how horrible is the
healthcare in Russia so it – it was a big conversation. She
emphasized so many times that she is looking forward to we will
take them to Canada as well. It was her understanding from the
very early time and in 2004, of course, when we became eligible
to bring relatives under the sponsorship agreement, of course I
told that to my mom and – actually we were just waiting for this
– it was like waiting period for us – very waiting period since
we immigrated to Canada until my husband and enough income –
enough to sponsor family members. And this happened in October
of 2004. So he lent income that we could show to immigration to
prove that we can support relative here in Canada. And of
course it’s – it’s everything that’s happening here, it’s – I
don’t know – I don’t have word for that actually. Because it
was so mutual – it – I cannot call those things as an agreement.
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We were always there for each other. It – it – [indiscernible]
– so of course if they don’t wanna move to Canada, my mother
didn’t want to put me in any kind of trouble. She knew that I
was travelling a lot and of course it was a mutual decision that
the family was gonna sell all their assets in Russia. They are
gonna move – they – it was the conversations that of course they
will – wanna leave Russia forever. And mom – my mom didn’t have
any doubts that I will take best care ever for her – best care
possible – because she knew this and of course she told –
[indiscernible] again, it was so hard we have something to sell
– to provide so you – you will have money and you will be able
to take care of us in different aspects including financial
aspects. We – the only – what are you even talking about - that
their so lucky we have something to sell – otherwise it was her
understanding that Pavel didn’t have enough – although the
immigration Canada allowed us to bring relatives at that point
and it – we were lacking in this aspect as well actually.
Because by that time we didn’t sell the – our assets. So it was
my mom’s understanding that to come to Canada they will have to
sell everything in Russia and transfer everything to me in
exchange – but it’s very formal – what I was saying here, it’s
very formal words and we have to say a lot of very formal words
now. At that time it was just my communications with my mom as
we always did. It was communications from a daily basis. I
called her every day. When we moved to Canada in July 2003,
first thing I did in Canada, I was looking for a telephone booth
to call my mom because she was the most important person in the
world for me. And it’s changed here and this [indiscernible] –
this is why I’m here at this [indiscernible].
Q. So they agreed to sell the family assets in
Russia?
A. It was our mutual understanding that we will
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have to sell all – we will need money for their support here –
yes.
Q. And you – you referred to them as family
assets, why is that Ms. Danilova?
A. What we have back in Russia, it was an
apartment, a cottage – you can call this a cottage house and a –
you know, it’s kind of misleading about many things here like,
you know, calling Valentin a professional engineer, it sounds
big – big job actually, when you are calling him a professional
engineer. He is actually – the training is very similar, but
the [indiscernible] back in Soviet Union and then Russia –
Russia you have professional engineer, it’s comparing being a
shop assistant at grocery store and the shop assistant at
grocery store has – had access to good food. So it’s actually
kind of ridiculous how it sounds to me and same is like cottage
house in Russia, it’s just a cabin without [indiscernible]
without any [indiscernible] I would say if you can point to just
water – well. So yes, they have an apartment shared with me and
my daughter. They have this cottage house, however they call
that. They have garage and a car.
Q. And you said that the apartment was shared
with you and your daughter, could you explain that?
A. To explain that, we just need to have a look
in the – into the history of this apartment, you know, because
of privatization, this was – it was the best thing happened to
Soviet people – the best thing the government actually did to
the people from the Soviet Union and the right to acquire their
ownership for the share in the apartment where people were
previously allowed to live – to live lifetime. So previously in
the Soviet Union and after in Russia, previously before this
privatization people just had right to live lifetime in their
apartment - so it’s – let’s say apartments. So myself, my
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daughter, Valentin and Alla, all four of us had this right to
live in this apartment lifetime. And it’s [sic] sounds
absolutely ridiculous and nonsense to me that now my mom is
gonna take even this – the only right from me and especially
from my daughter whom she – she loved – I don’t know – to death
I would say. And she’s taking this only right the government
give to all Soviet people and I – I was born and raised in Saint
Petersburg, Russia. I was – it’s – [indiscernible] I lived in
Russia. Actually my – my – then my father left my mother. I
was two years old and my father left. It was actually my
father’s property because my mom – well she went to live with
him and again, this good thing that my father did for me, he
left me with a place to live – to live lifetime. My mom raised
me alone until she got married to Valentine; I was 15. They
consolidated two places, my mom’s – the place I live with my
mother and Valentin’s place. They consolidated this through
exchange. It was the only way to do that back this time and it
was actually again misleading. It was not a two bedroom
apartment or one bedroom apartment, it was just an apartment
with two separate rooms – two rooms across the hall, absolutely
separate, equal in size. My mother lived with Valentin in one
room. I lived with my daughter – I lived in separate room. I
got married to Pavel. We lived together in that apartment. He
came to live with me because the property he owned at that time
– not owned – his parents actually give him to live, it was
remote – very remote – and he lived with me. Our daughter was
born in this apartment so our daughter received a share on this
apartment – a sole share just – just through her bills. I – we
were living in that apartment and this is actually very
important, that we had an experience back in Russia living
together. It was normal – again, real – it was more tight than
living in a house and you refer to this – the counsellor of YMCA
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referred to this house as not big, but we used to live in
apartments of – with two rooms across the hall with one bathroom
and one toilet – separate toilet and – a separate toilet and the
wash bath with a sink in another room – how would you call this
now? So this is why I – I – I do this statement, yes. We have
equal shares in this apartment: myself, my daughter, Alla
Nikityuk and Valentin Nikityuk. Their cottage house, it was
Valentin’s actually because he received it from his employee and
he had it before he got married to my mom. But we contributed
or whatever this word is – in worth to this cottage house. And
it looked completely different after – actually my – Pavel’s, my
husband’s father, did a lot of additions. He was professional
carpenter and he did a lot of work. My husband worked on this
additions to the cottage house as well. The garage was to –
through the name of my mother. Yes they just bought it, I
didn’t have anything to this – to that garage.
Q. Could you turn to Tab 35 in Exhibit 1(A)?
It’s page 200.
A. Which tab, please?
Q. Thirty-five, page number two hundred.
A. Yes. This is – yes, this is – this is an
offer of passport – it’s year that they had two passports back
in Russia, one for internal use and another one for travelling.
And this is a copy of my internal passport. And also the copy
of my – a - this is a copy of my passport, right? Yes.
Q. Yes, so if you could look at page 200 in
conjunction with page 199.
A. Yes.
Q. Could you tell the court when this document
was issued?
A. The....
Q. Or registered I believe is the word they use.
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A. The doc – it was – the passport was issued in
2002 – July 23rd, 2002. Yes. The passport was issued in July
23rd, 2002.
Q. And it appears at that time you were still
registered to the apartment in Saint Petersburg?
A. I was always registered in that apartment in
Saint Petersburg since we consolidated two apartments. Yes.
And – and it was when I was 15 years old. Yes. It just – it
just a document – just pass – passport there that was issued –
yes.
Q. Did you ever give up your right to the
apartment in Saint Petersburg?
A. I didn’t understand why everyone was gonna
decide to make me look so stupid. Yes – that’s what my position
here. Because do I look like an idiot here? Why would I do –
just take this right to own the place where I live that all
other people got from the government. So I – no – no, I never –
I never did this thing like they’re referring to - like the fact
un-registration or something like that – no.
Q. And by being – being registered at the
apartment, it gave you the right to stay at that apartment?
A. Oh being registered in the apartment means I
have lifetime – I have right to live in this apartment lifetime,
yes.
Q. Let’s look at Tab 36, page 205 please.
A. Two-oh-five. Yes. It’s the same – doc –
documents of the same kind but for my – for our daughter
Anastasia Danilova’s.
Q. Yes. So this is her internal passport
document?
A. Yes.
Q. And it’s been translated at page 204.
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A. Yes.
Q. And again, Anastasia’s registered at the
apartment in Saint Petersburg, correct?
A. Yes, since her birth in 1985 – yes.
Q. So earlier we looked at the sponsorship
agreement and when the agreement was signed back in October
2004, did you know whether your parents would be coming to
Canada or not?
A. Of course not. What happened in 2004, we
paid – we signed this formal agreement to initiate the
immigration process. And this immigration process was in two
stages. One stage was here in Mississauga, so it was actually
our – from our side, we gathered all documents – mostly it was
our – to prove our financial situation to Immigration Canada.
So we – we should have some T4 of my husband’s to prove the
income, that we have enough income to sponsor our relative here.
We paid – was about $1,000 for this first step. We were
thinking – we checked into that – we were thinking that we will
be approved, but the other stage of immigration looked much more
difficult for us and involved so many steps that could be not
actually [indiscernible] including that medical examination of
parents. There are so many security checks involved like if a –
Valentin was immigrating as a family member for my mother – as a
family member of my mom, my mom was a principal – was a
[indiscernible] and Valentin was a family member, but he – he
had to go through all – all the same proceedings like security
clearance – it was [indiscernible] as well because he – he – if
you are talking him as a military man he worked for
organizations and he – at some point he was not even allowed to
have a passport for travelling from Russia during his career
because he was working for organizations with a very, very high
security clearance and he – I knew that. We said everything at
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that point – no we didn’t know if they can go through the
immigration and the immigration would be successful for them.
No, not at all. But we decided that we’re – we had to do this
anyway. We had to try anyway.
Q. And we’ve heard evidence that your mother,
Alla Nikityuk, came to visit you in the fall of 2005.
A. Yes, this surgery performed with my mom in
February, March 2005. It went well. It – I cannot even tell
that it was – it was successful, but we – we assumed that it was
successful in time because after the surgery my mom was very,
very weak. She received one shot of chemo because the surgeon
insisted that she needed chemo. And she received that chemo
after I left – after – after I left, the chemo. But I was
communicating with the surgeon over the telephone all the time
and my mom told me that she would not survive another shot of
chemo. She was very, very weak. I arranged – again, I used my
networking lot and I arranged substitution for chemotherapy for
her that was immunotherapy. And it – it’s – it started to get
better for her. She was still very, very weak, but by fall she
started to actually feel better and we decided that she could
even come to visit us. And it was huge for her. Her pain was
year [indiscernible], but it was really – very, very happy about
the results of everything. And my mom, she’s – actually she’s a
survivor. She – she – she contributed to [indiscernible] so she
– anyway, it was getting better and she came to visit in October
2005. We started talking a lot about immigration. We were in
the immigration process and we were on the same page and I was
so happy and she was happy to see Canada. It was like a dream
come true for her. All the shopping malls, all the – everything
was new for her and she was very, very happy – yes.
Q. Could you turn please to Tab 25 in Exhibit
1(A)?
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A. Which tab?
Q. Twenty-five.
A. Yes.
Q. This is CIBC account summary for a joint
account between yourself and Alla Nikityuk.
A. Yes.
Q. And I understand from the evidence we’ve
heard that this account was opened during her visit here to
Canada in November of 2005?
A. Yes, the story behind that when I actually
came for surgery for my mom in February, March 2005, I brought
MasterCard and I gave her MasterCard because I needed to find
some way to – to send her money. She needed money every month
for medication – a lot of medication that she was taking and
good food to – because since she went through so many treatments
– cancer treatments, cancer can return anytime, it was always
about food like or – organic food and they bought everything
from the Farmer’s Market, so I – I had to send them like 600 a
month at the time and I brought MasterCard. Well they were
using things March 2005 until my mom came to visit in October
2005 and it was not convenient to use this MasterCard, you know
– we – we were always talking how to do things – optimize
things. They saw that, then they taking – then they withdrawing
money with the MasterCard, then there’s some fee involved and we
were talking about that and they said oh it’s so unfortunate,
that they would rather – we would rather use this fee for
something nice, but not to pay the fee to the bank. It’s so
unfortunate. And we decided there is another way. My mother’s
here and although she – she was not a permanent resident, but I
was and we went to the bank and we opened the account. I was a
permanent bank holder and she was a supplement – she was – she
had a supplementary card. So we gave her the access card that
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she used after she returned to Russia – yes. This is the
account actually that we opened with her. She always knew about
that account because they used access card to this account for
withdrawal money when they were living in Russia. And as I said
it was very hard for me to send this kind of money every month.
So as I mentioned it was 600 a month, then – I don’t remember,
at some point we started to send them 200 a month because my
mother still said that they need money, they cannot live without
all the support and then I took all kind of job as I mentioned
cleaning and everything just to send her money to my mom every
month.
Q. And so when do the Nikityuks arrive in
Canada? Do you recall when they arrive?
A. They arrived June 13th, 2008.
Q. And do you recall where you were living at
that time?
A. At that time myself, my husband and our
daughter, Anastasia, were renting an apartment in Etobicoke. It
was two bedroom – two bedroom apartment.
Q. And I understand from the evidence that we’ve
heard to date that the Nikityuks moved into that two bedroom
apartment with you.
A. When they arrived – if you call this move in,
I guess – so they arrived to stay with us in this two bedroom
apartment. Yes.
Q. And by August of 2008, we heard about the
house in Innisfil, 1490 Rankin Way. I understand Nikityuks then
moved into that house, correct?
A. In August 2008? Yes, it was – purchased the
house as our principal residence from Pratt Home in 2007 with a
closing date in August 2008. And after the closing date finally
was August 15th, I believe, 2008. Yes and it was the Nikityuks
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started to live in our house that was our principal residence
for the very first day of occupancy, that is August 15th, I
believe, 2008. Yes. My parents, they started to live in our
house.
Q. And where were you living during that time,
August 2008?
A. As I said, we purchased this house as our
principal residence and we benefitted from all – all their good
things Canada offers to first time home buyers. But we still
had this apartment in Etobicoke back then. And that – that
apartment in Etobicoke, we rented – myself, my husband and our
daughter. We continued to keep this apartment in Etobicoke and
basically we spent most of the time living in this apartment in
Etobicoke but coming to the Innisfil on a very regular basis.
My husband, together we came on weekends. But myself, I came
much of them. It was – it was not enough for me to come only on
weekends. I came much more often during the weekdays and – and
basically I – I was living in between I would say. I was – I
was living like on the road. No – no that is not correct. Of –
of course it’s not correct, but my impression I was travelling a
lot back and forth – yes. Sometimes I was travelling just for
two hours because they needed me for something that – Innisfil
house, I was travelling as did something in Innisfil for like
two hours and then came back to Etobicoke. It was – this is why
we maybe we shared that time as a nightmare for us because it’s
– it was really so messy. It’s not how we actually see the way
to – to live and....When we were receiving a phone call from my
mom saying that we have to come right away because we need to
take Valentin to the emergency because of his health problems.
Yes. Yes.
Q. And what other things would they call you for
to come to Innisfil to assist with?
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A. It’s – it would be a very long list if I –
but of course, it’s all their health. So I managed their
healthcare since the date they arrived – of course. I came for
– to be there for them for – to manage – to manage their
healthcare. It was one thing and very extensive. Then it was a
new house from very economical builder. It’s been discounted –
discounted that Pratt Home used available deposit structure, but
everything comes with a price actually. And the house as it was
closing date was in August, but there are so many issues and –
but the builder – the builder didn’t mind to fix my mistakes,
but they came to the house again and again to fix things. And
dealing with this was – actually it was during the first year of
occupancy of a new home and it was a lot of work. I needed to
provide with all the grocery shopping of course. I need to
stock the fridge. Luckily my mom is very good in cooking and in
taking care of her, they are very good in that – hygiene, it’s
nothing to – ever needed to explain to them as she’s very – so
she’s very good in all of that – everything about personal care.
I would refer to those things as personal care like laundry.
Valentin, it’s always was his duty, even back in Russia, he was
always very good with vacuuming and he did vacuuming – it – it
was his duty in the house. He was happy with the vacuum cleaner
we bought for him here. And basically it was not even one
vacuum cleaner, it was three vacuum cleaners. At – at first it
was two for main floor and second floor, but when we finished
the basement we bought a third vacuum cleaner for the basement.
So yes.
Q. And then at some point you and Mr. Danilov
also move into the house at Rankin Way.
A. In June 2009, we moved from [indiscernible] –
yes, to live – to live – to live all together as a family of
four in an Innisfil house – yes.
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Q. And how was that living together in the
Rankin house?
A. Normal. How – it – it was normal. Every
family – if you’re referring – if the counsellor’s referring a
lot – who, what – met or said of what, you know, I think it’s –
it’s every family – it’s most important to respect that the
[indiscernible] of each member of the family. We are not
perfect. None of us is perfect – of course, but as I said we
had experience – previous experience from Russia living
together. It was – everything was like normal, functioning
family. I would characterize this like that.
Q. And tell us about the Nikityuks use of the
home. I understand they each had their own bedroom.
A. This was the main agreement always that my
mom and Valentin they – they request was always to have two
separate rooms. Even when we are – rented an apartment for them
in Etobicoke, it was first arrangements about their
accommodation here in Canada. Although it’s – it is – it’s
called one bedroom apartment, but my parents didn’t see this as
a one – like one room apartment, they considered this apartment
still being two room apartment, just separate rooms. When my
mom could sleep in, how you call this living room, but it was
intention. They would never sleep in one room. They actually
used to live – to occupy both rooms back in Saint Petersburg
because I left Russia in 1996. So since 1996 they were living
in separate rooms. They slept in separate – I do not want to go
in details of thoughts like I’m going. Implying something
personal here, but it is what it is. They used – they used two
different rooms for sleeping needs I would say so. And in this
apartment in Innisfil, they have two separate bedrooms on the
second floor. The other bedroom is en suite, how you call it
here, in – en suite – that means they use a separate – that we
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occupy, it has a separate bathroom – full bathroom, toilet –
full bathroom, how you call it here?
Q. A master suite.
A. Master suite. Walk-in closet and it’s very
separate from their rooms. It’s like – because the hall – there
– there is a door – then there is another hall with an entrance
to the walk-in closet, then there is entrance to master – to en
suite bathroom and then there is a room. So it’s very separate
from their rooms. And it was quite enough room for a family of
four. All the neighbours have same layout in the house and they
have three – three children living in this house. Sometimes the
children – a big dog, cats and so – children of different ages.
Four people – adults live in this house, it was more than enough
and everything understood that. It was like – it was a very
good level of accommodation for our family. Nobody would
question that at that point. Now, I’m hearing so different
things from the counsellor of YMCA and – but they have different
[indiscernible] I believe – completely differences of course and
it’s very nature that they have differences and that’s....
Q. Other than their bedrooms, what other rooms
did the Nikityuks use in the home?
A. Other than the bedroom, there is a very big –
not very big, but there is a loft in the size of the room and it
has a window. Normally families can use it for as a playing
area for the children. Can put the desk with a computer on this
loft. We even had an option with the builder to make this loft
a sep – separate bedroom, but we didn’t go for that, we decided
it’s nice open area for the house. So it – it was a loft there
that we used as an office since we moved to – to the house. But
the area on the main floor, it’s an area – you called it a
living room, the – the whole – when you’re entering the house,
it’s pretty big. Then the kitchen is normal size, you can – not
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on the [indiscernible] there in the kitchen. There is also at
night....This – this called the common area for the family.
They used all this and after we finished the basement, they
could use the basement whichever they want to do there. Of
course back yard – the fenced back yard. They put gazeebo so we
had a very big deck. They used all areas I would say, except of
our – our master’s bedroom.
MS. CHAPMAN: Would this be a good time for a
break, Your Honour.
THE COURT: Yes, we can take our morning break
now and come back in about 15 minutes.
R E C E S S
U P O N R E S U M I N G :
THE COURT: Ms. Danilova, could you return to the
stand?
CLERK REGISTRAR: Would you return, Ms. Danilova?
MS. CHAPMAN: Q. If you recall before the break,
we were talking about living together at the Innisfil house and
I understand that you spent time together – you spent time with
your parents while living there?
A. When we moved in to live together, it was –
we – we’re all together. First of all we didn’t spend time.
Q. Yeah, social time.
A. If we go to visit our friends, they’re always
our friends so they – they invited – in Innisfil, they didn’t
know anyone from the beginning. We introduced them to all – all
our friends because they’re normally won’t visit our friends –
we have friends living in Mississauga, in Toronto and they
always took – I don’t even like this word, took them with us.
So we went together to visit our friends. Our friends came to
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visit us and we all – all four of us were all – were always
present. When our friends came to visit the family, of course
we’re have – we shared meals or we have the same
[indiscernible]. Mostly I cooked. Sometimes - my mom mostly
cooked for special occasions. They – when our daughter came to
visit or our friends came ‘cause she – she’s – she is actually
good with everyday cooking as well, but she likes to bake – she
did it when I was taking them for 14 hours, showing them around,
they – as an example they liked Cookstown Mall – outlet mall
very much and after I introduced this to them, they started to
go on their own to this Cookstown Mall. They liked to buy
clothes. They actually really enjoy buying clothes or shoes,
shopping for clothes and shoes. And they did it out by
themselves, sometimes with me, sometimes my mom needed my
opinion about something she wanted to buy. So absolutely normal
family relationship in the family. Yes.
Q. Could you turn to Tab 88 please of Exhibit
1(A)? If you could turn to page 488.
A. Yes. Mm-hmm.
Q. Could you tell us about these pictures on
page 488 please?
A. This is exactly what I was talking about.
This is our friends; they live – they live in Mississauga
[indiscernible] and Kerr. Margarita (ph) and Yugini Brylouka
(ph) came to visit us in Innisfil house. This is a picture of
myself with our daughter here, Alla and Valentin in the kitchen,
my parents, Margarita (ph) and Yugini (ph) – actually we came to
visit Margarita (ph) and Yugini (ph) on four or five – many
times at their place, they live in Mississauga. We came to
visit them when their mother of Margarita (ph) visited on
[indiscernible] and Kerr. So my parents communicated with the
mother of Margarita (ph) lately – later; the mother of Margarita
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immigrated and she was interested in communicating with my mom
very much. I – I didn’t know they didn’t communicated with you
now – with her now, probably. But we have actually a lot in
common. Many of our friends also brought parents under the
sponsorship immigration – yes. We have a lot of common – with
our friends. And the picture, number eight, it’s the same
visit. So we went to Innisfil Beach Park and then we shared
meal together and on the picture number eight, there is our
daughter as well. It was very common for our family to have
friends over. It was – it was mostly our friends at that time
and my parents they get acquainted with many of our friends.
Q. And on page 489 please, picture 10.
A. Yes, this is New Year Eve off [sic] –
December 31st, 2008. New Year Eve when family – we exchanged
presents always, so this is that occasion where Valentin and
Alla receiving presents. Actually this is a pile of presents
New Year Eve and they are picking up presents for them and
they’re excited, they’re surprised and it’s normal things in the
family. Yes.
Q. I understand from the evidence we heard that
the Nikityuks had access to a computer.
A. Valentin had his own computer, it’s desk –
desktop – big computer and he had this computer in his room. We
bought the computer desk as he had computer in his room. Yes.
Q. And what would he use the computer for?
A. Computer games including for emails as well –
for checking emails as well. And he played some games.
Q. Could you turn to Tab 91, it’s also in
Exhibit 1(A)?
A. Mm-hmm.
Q. And starting at page 573, there are some
email correspondence between Valentin and some others – just a
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moment. Could you turn to page 575?
A. Yes, I’m on page 575.
Q. And this appears to be an email that Valentin
sent to Slava (ph). Who’s Slava (ph)?
A. Slava (ph) is a brother of Valentin still in
Russia. He lives in Russia. He doesn’t speak to us actually
any longer because of all of the bad things Valentin told to
him. We used to be good friends – I used to be good friends
with him.
Q. And so Valentin corresponded with his brother
Slava (ph) and do you recall what this email was about?
A. Give me a sec [sic] just to refresh.
Q. Sure.
A. This, as I can see, it just about their life
here and some home things. Valentin communicated to – on March
27 – on March 27 we went to the festival of maple syrup. We had
good time there with – with pancakes filled with maple syrup.
It was delicious. That was Valentin via he communicated a lot
with friends, family back in Russia. They always responded to
him. Emails from Russia were read out loud for entire family.
He – Valentin just shared about the life here in Canada with
friends and relatives back in Russia. Also, there is some
business here. This Slava (ph) as for your website, the kids
don’t need it. They have enough on their plate for now. Pavel
is employed by a silent company with Sveta (ph) working from
home. Sveta (ph) it’s short form Svetlana. They turned their
basement into office – so here Slava (ph) offered us to
participate in his business. This is what I got from this
email. What are you called – at some point, Slava (ph) offered
all of us, including me, Valentin and Alla, to participate in
his business and he wanted to expand his business from Russia.
He wanted to expand his business to Canada to send some medical
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supplies in Canada – this kinda things like [indiscernible]
funerals or things like that. And Valentin and my mother said
we don’t even know how to tell him in polite way that we do not
need it and he is referring to this business of Slava (ph).
Here is – and Valentin is saying that we don’t need anything.
The kids in this email, it’s reference to us with Pavel. The
kids don’t need it – Slava (ph) as for your website, the kids
don’t need it. They have enough on their plates for now to
attend to. Regarding us, it’s in the email continue. Me and
Alla, we are not in need of anything. We are not planning to
make any commitments, so let’s drop the issue. This Slava (ph)
he was very involved because he was so desperate in – in
extending of this – his business and this is what this is about
– yes.
Q. And just for the record, the heading of that
email correspondence is on page 574. So that email looks sent
from Valentin Nikityuk on Monday, April 4th, 2011.
A. Yes that’s right. They header is on previous
page 574. The email was sent from – from Valentin Nikityuk to
Nikityuk, Olga (ph) – Nikityuk, Olga (ph) is the daughter or so
they – daughter of the Slava (ph), the niece of Valentin. It’s
the same thing. You see, Nikityuk, Olga (ph) receive an email
for her father. This is quite normal – normal in the families
and family members use the same emails. That’s some kind of
normal – normal thing I believe.
Q. Would Valentin type out his own email
response?
A. Yes. As a matter of fact he did. He typed –
he typed. Yes, he could type. Yes.
Q. I understand from the evidence we heard that
Nikityuks had the use of a Honda Civic.
A. Yes they did.
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Q. A leased car, correct?
A. Yes, Honda Civic 2009 was leased for the name
of my husband. I believe I was on the lease as well, but I’m
not – I am not sure at the moment.
Q. And who would drive that car usually?
A. Valentin.
Q. And is it true that you would travel in the
vehicle with them – with Valentin and Alla?
A. There – there were some occasions where I – I
– you mean I?
Q. Yes.
A. Yes, I – I was travelling with them. I can
give you an example. They – okay they wanted to see the horse
race in Innisfil. They asked me to go with them, I went to this
horse race track in Innisfil – was one of occasion – yes there
were occasions when I was travelling with them in their seat of
passenger – yes, I would say – yes.
Q. And were there concerns about Valentin’s
driving?
A. I wouldn’t call this concerns. You know, he
came to Canada and he kept referring to his 50 years of driving
experience and as a matter of fact, he failed his first G4 test
here. He got very upset. He asked me why, he didn’t
understand. He – he honestly didn’t understand how could this
happen. This was the thing. The problem was he didn’t check
the blind spot. It was kind of problem for him because he had
his own habits from Russia from 50 years of driving experience.
We had to book lesson – book lessons for him. So he was
struggling – yeah I would – I would call this struggling. But
he passed second test and wrote his G4 licence. He was quite
all right. He was a little bit cautious about going to
highways, he would prefer to take streets other than highways.
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But with time it – it improved – improved with him. So it was
not bad. There was some occasions when it was with the previous
car actually, not with Honda Civic because Honda Civic had
automatic transmission. But before Honda Civic we had the
manual transmission – car with manual transmission and he
rejected to use the higher gear on this car that we noticed –
even our friends on several occasions when we were travelling
with them to Innisfil Beach Park. It was actually that
[indiscernible] – we saw pictures with Avronika (ph) before and
he was really expressing his – Jenny (ph) and Avronika (ph)
expressing this to Valentin – what – why – it’s a good thing and
here – he had that conversation with Valentin. But concerns
about driving, maybe you need to be more specific what do you
mean – what do you mean concerns about driving other than those
I can recall?
Q. Did you speak to him about using his mirrors?
A. Of course all the time. We had conversations
with – we have conversations and he referring to the – back
mirror that he can see everything from back mirror. It was – it
was quite a conversation – yes. Yeah.
Q. I’d like to talk now about Nikityuks’
pensions while living in Canada. Could you turn to Exhibit 2 –
sorry, Exhibit 1(B), Tab 119 please?
A. Yes.
Q. And on page 732 we have an email between
Svetlana Danilova and a Russian Consulate dated Sunday, January
30th, 2011.
A. Yes.
Q. Can you tell us about this email please?
A. I – I – yes. In this email from myself to
Russian Consulate in Toronto. Email is dated January 30th, 2011
and the subject is “Reply to the Request for a Schedule for an
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Appointment”.
Q. What was the appointment with the Russian
Consulate for?
A. In January 2011, Valentin approached me
saying that he needs to make a Power of Attorney to our relative
back in Russia. He said that he needs to appoint some – our
relative back in Russia to be his Power of Attorney for the
specific operation with his bank account that is still in
Russia. It was a big surprise for me at that – in January 2011
because I thought that all the accounts closed in Russia and he
didn’t have any business with any bank accounts in Russia. He
asked me to find out how to notarize the Power of Attorney in –
in Russian Consulate in Toronto so he could notarize the Power
of Attorney and send it to the relative in Russia who gonna
manage that bank account of his. He also needed me to draft
this Power of Attorney to do – to do research through the
Russian Consulate website to find the form for this Power of –
of Attorney. That’s what I did. I typed for this Power of
Attorney for him and it was for the name of Margarita Alexiava
(ph). So I prepared the draft of this Power of Attorney and
Valentin notarized this in Russian Consulate, send it to
Margarita Alexiava (ph). At this point, we’re thinking out that
he’s still receiving the dividends from his former employee.
This is – his former employee is somewhere in Design Institute
in Saint Petersburg, Russia and that he is receiving the
dividends from his former employee. I told him that since he –
since he didn’t tell us before, we have to adjust all previous
tax returns accordingly. I didn’t know what kind of income is
this, but I told him that it’s still his foreign income and it
should be claimed for Canada – Canada Revenue Agency in his tax
return. That’s what I told him. But he said that it’s – it is
– he – he said to me at that point, but you see it’s good thing
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to have – it – it. At that time his daughter Ilyana Nikityuk
(ph), was in the process of application for her Visa – visiting
Visa to Canada. And he said, see it’s good – good time to have.
I can – Ilyana (ph) can take this money and use it for her own
need – for her needs. Yes. I – I oppose.
Q. So in addition to his Russian pension,
Valentin also had dividends that were payable to him?
A. Yeah. It – I believe it’s even in emails
with his daughter indicating that at the same period of time –
at this period of time, he sent email to his daughter, it should
be translated into English from Russian in our brief, where he
told his – his daughter that he can – that Margarita (ph) will
withdraw funds and Margarita Alexiava (ph) who is a Power of
Attorney of this account can withdraw funds in the amount you
need for all your needs of Visa – Visa application in Russia.
It maybe even here – yes it may be over here.
Q. Would it be at Tab 117, Ms. Danilova?
A. Yes.
Q. So email one appears to be an email from
Valentin Nikityuk to Ilyana Nikityuk (ph).
A. Yes. This is exactly what I actually meant.
This is the email from Valentin Nikityuk to his daughter
Nikityuk, Ilyana (ph) dated May 25th, 2011 and email said, “We
will call Olga (ph) and she will give you the necessary amount
of money. Her mother will withdraw the money from my account.
Submit the documents faster.” The documents referred to in this
email is documents for Visa application – for application for
Visa. “The money from my account is dividend from former
employer of Valentin. Her mother – her mother will withdraw –
her mother” – it’s Margarita Alexiava (ph) appointed by
Valentin, Power of Attorney on his account. So this is exactly
what I meant actually – yes.
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Q. And if you could also turn to Tab 120, page
735 we have an email from Ilyana (ph) Nikityuk to yourself,
[email protected], dated Thursday, August 11th, 2011. And
could you tell us about this email please?
A. This email was sent to me from Valentin’s
daughter shortly after she came back to Russia after she visited
us in July, August 2011. “Hi Sveta, I have successfully
arrived. Thanks a lot for nice tickets in Paris and so on.” So
the arrangements were – the arrangement was that I bought
tickets online and Valentin reimbursed from his pension. He
covered all the visit of his daughter from his pension. This
was in the arrangement. Even from the money he still had in
Russia for her Visa application and then for her air tickets and
for all the staying, food and entertainment. Actually I – we
have witnesses who’s gonna be witnesses here – our friends who
came to visit our family during the staying of Valentin’s
daughter and Valentin shared with our witnesses now, our
friends, Olha Krylova and Alex Krylov. Valentin shared and he
was very proud that he paid for air tickets for Ilyana (ph) and
for her entire stay here in – in Canada for her visit. Also,
here “P.S.”, it says, “By the way, on the last day Valentin
Endraivedge (ph)” – Valentin Endraivedge (ph) it’s actually
Russian – in Russia we have two names, the second name’s coming
from your father name. Endraivedge (ph)’s referring to – it’s
called – they refer to people in Russia in two names. So the
daughter’s saying in her email, “By the way on the last day
Valentin Endraivedge, was as usual, he was screaming all the way
and I lost my patience and told him that if he wanted completely
to ruin my impression of him, that was right – what that was his
right. After that he was angrily silent and even said bye to me
between his teeth.” Actually visit of his daughter, I need
probably to qualify a little bit. She [sic] never had any
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relationship with his two twin daughters – never, he’d just send
support and maybe call them on their birthdays for their entire
lives. Maybe he and Ilyana (ph) shared with me when she was
here she [sic] went with a cake to visit them and that’s it.
That made them very uncomfortable because they always had their
own arrangements for their birthday and they needed to deal with
him coming with a cake and but – they lived in the same city, in
Saint Petersburg – they lived in Saint Petersburg. They were
never – the daughters of Valentin, he was never for them and
they were never for him. And then he had surgeries and
everything. Basically the right thing to say here didn’t have
any relationship with his daughters. But prior to immigration
to Canada, they arranged for meeting with his daughters. And he
started to communicate with one of them because the other one
not even comfortable talking to him based on all the previous
history.
THE COURT: Yes, Mr. Bornmann.
...OBJECTION BY MR. BORNMANN
A. That’s what....
THE COURT: Just a minute, just a minute. I’ll
hear from Mr. Bornmann. Yes.
...OBJECTION BY MR. BORNMANN
THE COURT: I think it probably goes a little
further than we need to hear at this point unless
Ms. Chapman thinks it need be pursued. I think
your point is that he paid for this visit through
his pension and some dividends in a Russian bank
account, is that the point?
MS. CHAPMAN: That’s the point. Yes. Thank you.
THE COURT: Okay. We don’t need to hear
background information...
MS. CHAPMAN: No, we can...
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THE COURT: ...about the relationship.
MS. CHAPMAN: ...we can move on. Q. So if we
could turn to Exhibit 1(A) at Tab 89, page 508.
A. I’m sorry, could you please repeat?
Q. Yes, Tab 89, page 508. Now we already spent
some time on these photos, but just to confirm, Ms. Danilova...
A. Yes.
Q. ...picture 47 at the bottom of page 508, this
is a picture of Alla and Valentin’s daughter?
A. That’s right.
Q. And the photographs that follow under this
tab, are those pictures are taken while the daughter is visiting
Valentin here in Canada, correct?
A. That’s right. These [sic] picture is taken
at YMCA Recreational Complex of Innisfil.
Q. And did you spend some time with Lana [sic]
when she was here?
A. Ilyana (ph) – Ilyana (ph) – yeah...
Q. Ilyana (ph).
A. ...Ilyana’s the name of the daughter. Yes of
course we spend some time. We have the same background,
graduated from the same university. We have a lot in common,
but it was the first time I saw her.
Q. And were there any discussions about the
Nikityuks residing with you in Innisfil?
A. Of course she was – a lot – a lot – she was
just – I don’t know how to put it, pleased how we made all the
arrangements to live together and everything.
THE COURT: We’re just going into hearsay again.
I think that’s why you’re rising, sir.
MR. BORNMANN: Yes, Your Honour.
THE COURT: Ms. Chapman, unless she’s going to be
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a witness, what she thought about the whole thing
is not helpful to the court. It’s hearsay. But
what this witness observed, may be some
assistance, I don’t know.
MS. CHAPMAN: Q. Okay. We’ll move on to Exhibit
1(B) please, Tab 121.
A. Yes. Yes.
Q. This appears to be an Agreement of Purchase
and Sale between Danilovas and Pratt Homes.
A. That’s right. This is the Agreement of
Purchase and Sale between myself and my husband, Pavel Danilov
and Pratt Home for purchasing house in Innisfil and again dated
May 24th, 2009 – or something.
Q. Sorry...
A. No – no.
Q. ...I believe you’re mistaken.
A. Yes, sorry. Wrong page.
Q. The property appears to be Unit 141 at 7
Sydenham Wells.
A. Sorry this is an agreement between myself and
my husband dated May 24th, 2009 for purchasing a condo in Barrie
– yes.
Q. And who were you purchasing the condo in
Barrie for?
A. We wanted to buy this condo for – it would be
condo purchased on our names, but we wanted parents to live in
this condo. This condo was very close to Royal Victoria
Hospital and at this time we – we were thinking that we can
manage with parents living in this condo separately from us.
Q. It is suggested that the condo was in fact
purchased for your daughter, Anastasia. Is that true?
A. Absolutely not.
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Q. So we also have heard that the contract for
this condo was – sorry that the contract for the condo was given
up and the condo was not....
...OBJECTION BY MR. BORNMANN
THE COURT: Well I don’t think there’s any
dispute that it was given up because we’ve
already heard that evidence. I know there are
some issues in dispute, but we know that the
condo was not purchased, we’ve already heard that
evidence. The reasons though may be important
and that’s perhaps what we need to hear from this
witness, so we don’t want to lead on that issue.
Is that your point?
MR. BORNMANN: Yes, Your Honour.
THE COURT: But the essential points are not in
dispute. There was an agreement signed...
MR. BORNMANN: Yes, Your Honour.
THE COURT: ...and the agreement was terminated.
MR. BORNMANN: Yes, Your Honour.
THE COURT: There was a small – small deposit, we
know that.
MR. BORNMANN: Yes, Your Honour.
R U L I N G
MULLIGAN, J. (Orally):
So Ms. Chapman, I think what we are looking for
is - I think you can lead on those fundamental
points that we know about, but if there are other
issues that are important, then I would like to
hear from the witness.
MS. CHAPMAN: Of course. Okay. Q. Ms.
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Danilova, could you tell the court why the contract was
terminated?
A. The contract was terminated to buy this condo
in full 2009, I believe, I cannot tell specific date of
termination. As parents started to go to YMCA English classes
in 2009 – August 2009 – September – September – they started to
go to English classes September 2009, they were so overwhelmed
with all this English classes and they didn’t understand
anything, but it was one thing they kind of understood at this
point – this is my understanding, that no way for them to learn
English in anyways probably this – this was their impression
when they started with the classes. And besides the – a lot of
emails, I believe, from that time. My communication with Yana
Skybin and even those email – emails reflect in the situation
that there are so many medical appointments at that point, they
were dealing – parents were dealing with – as I mentioned and
it’s all over here that I were managing all their healthcare at
that time. There are so many surgeries needed to be done and I
– if you don’t mind I can even refer to emails on what I’m
talking about. There are e – emails. I believe it should be –
yes, in A – Exhibit A – yes in first binder. Anyway, yes – my
statement I can tell without referring to any emails maybe – I
can – I will refer to those email later in this context. But I
can tell that my mom just said that no, it’s impossible, we
couldn’t live separately from you. That so many things going
around with medical needs and English. They didn’t feel that
they can live separately at that point. And we found – we
started to think how to terminate the agreement. We found some
technicality – error – error hole in the agreement and we – we –
errors in the agreement and we – we – technic – errors in the
agreement and we terminated this – this – this very small fee –
it was about $100 I believe.
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Q. Let’s move on now to....
THE COURT: Just while I’m doing this...
MS. CHAPMAN: Sure.
THE COURT: ...I just want to get again the date
of termination. I believe it’s in this document
toward the end, page 767, October 31st of 2009,
does that sound correct counsel?
MS. CHAPMAN: Yes, it does.
THE COURT: All right. Thank you.
MS. CHAPMAN: Thank you. Q. Could you tell the
court how the YMCA came to be involved with your family?
A. At the end of summer 2009 – yes it was –
shortly after we moved into live in Innisfil full-time together
with parents, we started to think how to arrange some English
training for parents. Actually this need to learn English was
raised even when they – they were living in Russia and was about
to immigrate to Canada. I was talking to my mom at this time
and we were even considering some options in Russia with English
classes for them, but it turned out to – to be extremely
expensive, just private lessons would be available or – so at
this point it didn’t go anywhere. So we told them – we clearly
told them and they are educated – quite educated people and they
understood that after they moved to Canada, of course they will
need to learn language of the country. They have this clear
understanding. And of course this rised [sic] again, we were
living together at the – we were thinking about living together
for one period of time so we were kind of settled at the certain
place and I started to look for English classes for them in the
area. What I discovered was the English classes in Brantford, I
believe it also was YMCA classes and in Barrie. I communicated
to Brantford English classes, they explained me everything. It
was first I communicated to Brantford and then I called the
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number I found on the YMCA Simcoe/Muskoka public website. I
called this number in reference to the English classes and it
was Yana Skybin that said – [indiscernible] also the – would
have also – and I had conversation with her about the English
classes provided at their location – Newcomer Service – Services
– YMCA Simcoe/Muskoka Newcomer Services. I was – it was
surprise for me of course that Yana spoke Russian and I even
think that it would be natural at – yes we proceed in Russian –
we actually talked in Russian. She said that it’s – she just
explained me in details about what kind of English classes YMCA
Simcoe/Muskoka Newcomer Services providing. She said that it’s
five hours every weekday, five days a week from 9:00 to 2:00, I
believe – slight difference. The classes are free of charge for
people who qualify. Also the assessment of no English knowledge
is required before classes – before enrollment in this classes.
Basically she explained me everything in details and she also
said that she lives in the area – in Barrie, particular she said
that she lives in Barrie. And she said that she can even be of
some transportation help for my parents, but it – it was not
important – it was not important at that time because when I was
looking for English classes we were relying on our
transportation as Valentin had a car. She said that she could
meet with parents in Innisfil Beach – in Innisfil Library that
is close to their home – they could even walk to that library to
meet with her. When she said that she could assist them with
their assessment and assessment is in York Region as I remember
– [indiscernible] she mentioned York Region, it was York Region
and she said that she could go to an assessment with them.
After this conversation was pretty for everyone’s satisfaction,
she was – she was pleased she was talking with Russian speaking
– with someone who were Russian speaking. I shared with her
that at the first word that I’m looking for ESL classes for my
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parents who are elderly, that they – I indicated when they came
to Canada. I indicated that we live together as a family of
four. So I shared quite a lot with her because we were talking
about enroll – I was talking about enrolment of my parents. And
it’s kind of both ways, you know, when person opening up and she
opened up a lot from her side even in this first conversation
with me. She told that Canada is so great, there are so many
programs available for people in Canada and she is very grateful
to Canada and she has three children and she told me the age of
the children, I believe it was their little daughter was close
to one and a half and then her son, recall five and older
daughter was seven or something close to that. And I remember
the names of her children and she said that all of them – with
[indiscernible] but Canada is so great that all their programs
avail – available for her children here give her actually hope
for everything and this is way literally how she started to
introduce herself. She said I’m a mom with three children with
Autism and husband ran away. And she told me at the first
conversation with me. And things started to be very actually
friendly since because she shared that she liked to read a lot,
I shared that – oh we have library, old fashioned books – I – I
said that we have DVDs and a – a lot of stuff she actually never
asked me for any books, but I shared that with her that I would
– would be more than happy if I can put those Russian books in
use here because basically they were not used much since they
were brought. More like decoration in the house. So this was
the first conversation with Yana – yes.
Q. And do you have further conversations with
Yana Skybin?
A. As I mentioned, things got very friendly with
her from the very first conversation over the telephone. Yes.
And there are so many emails concerning that – proving that.
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But those emails are just the tip of the iceberg. There were so
many telephone conversations over the phone – or she called me,
I called her. Not as a close friend, I wouldn’t call her my
close friend, but things were friendly. She always knew me as a
nice person. I knew her as a nice person. She was really nice
to me and she had the level of – I knew and when I later –
actually had where she was spoke English, I admired how she
speak English, it’s a big deal actually when person succeed here
and can speak the language of the country. So I – I liked Yana
lot – so everything was very friendly. Yes.
Q. So let’s look at some of those emails. At
Exhibit 1(A), Tab 65 – actually there’s two tabs of emails
between Ms. Danilova and Ms. Skybin, on 64 and 65. And it
appears at Tab 65, the emails have been translated from Russian.
A. Yes.
Q. And would those emails have been sent between
you and Ms. Skybin over – it appears to be her personal email
address, page 418.
A. Yes, this is a translation – English
translation of – yes communication between myself and Yana
Skybin. Originally those emails were in Russian. I was using
her personal email – email [email protected] – Skybin.net is
actually domain name of her ex-husband, [indiscernible] Skybin.
You know, I – actually I know everything about Yana. I know –
she shared everything, the names of her children, the name of
her ex-husband and – was a lot of personal stuff. How her ex-
husband was employed and – a lot – and yes Skybin.net is domain
name she used – yes for her personal email correspondence.
Q. And then at Tab 64 we have additional email
correspondence between Ms. Danilova and Yana Skybin.
A. Yes.
Q. And these emails appear to be through the
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YMCA.
A. Yes.
Q. And....
A. Although there is the first – Svetlana dobriy
den (ph) – dobriy den (ph) it’s in Russian, good day. The email
– first email on page 403 – 403, this is email – this is the
first email Yana Skybin ever wrote me. The email dated August
5th, 2009 confidentiality agreement. The text of this email is,
“Svetlana dobriy den (ph)” – dobriy den (ph) is Russian – it’s
translated into English, good day – Svetlana good day. “I was
on vacation and now I’m back to work. I wanted to tell you that
it was a pleasure to connect with you. I spoke to the Barrie
Community Health Centre, they don’t know if anyone would speak
Russian and most of their services offer around workshops those
involve speaking English.” It’s just she told me during my
other first conversation that she was gonna think about some
Russian – Russian speaking in the community with whom parents
could communicate and this sentence referred to this. “I did
ask at our office about all the clients who speak Russian. He
was very supportive from the first conversation with her about
finding Russian speaking people in the community.” – and this is
referring to that. And the most important in this email is the
last paragraph, “May I ask you to print off the confidentiality
agreement for parents and read it with them and ask them to sign
and bring to their appointment on the 19th. I did not want to
overwhelm them when I met them as I gave them a lot of info that
day; it’s our standard for which I need to add to their files.”
So this paragraph is referring to the fact that Yana Skybin met
with my parents in Innisfil Library as was arranged with her
during my first conversation with her. And after she met with
my parents in Innisfil Library, he [sic] send this email to me
and it’s – it – in this appointment with my parents in Innisfil
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Library, first appointment with my parents, she made an
arrangement with them to go to the appointment – she’s referring
to the appointment. And this appointment is for assessment of
their knowledge of English on 19th – August 19th. So she made
arrangements with my parents to go to an appointment with them
for their English assessment on August 19th. Following English
email as I read already, “I did not want to overwhelm them when
I met them as I gave them a lot of info that day.” So even
during that appointment in Innisfil Beach – Innisfil Library,
Yana thought they - she could overwhelm elderly with
information. What – what kind of information she provided
to....
...OBJECTION BY MR. MAE
R U L I N G
MULLIGAN, J. (Orally):
Yes, we will have a chance to hear from that
witness later and she is subject to cross-
examination. So the witness should speak to her
own knowledge.
A. But more important than what I’m trying to
actually say here, Yana Skybin from the first moment asking me
may I ask – may I ask you to print off the confidentiality
agreement. So she was unable or – I don’t know, she didn’t –
again I’m going - again – but the fact is that she asked me to
assist parents from the first moment even with printing out the
specific YMCA forms to view it with parents to make sure they
sign it and – she was speaking the same language of – with them.
But it was how we said the things from the first appointment,
she was mostly – she was basically dealing with me all the time
since the first appointment. And there are so many proof of
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that and....
Q. So let’s have a look at email number five,
it’s on page 404.
A. Yes.
Q. And that’s an email from Yana Skybin to Ms.
Danilova on Tuesday, August 27th, 2009. And do you recall what
this email was about?
A. Email number five – email from Yana Skybin to
me dated August 27th, 2009. She’s – subject “Lawyer
[Indiscernible]”. She is referring to the conversation with me
in this email, “Hi Svetlana. I was happy to speak to you today.
I did get some info for you.” So appears to this email there
was a conversation over the phone. I believe I called Yana.
It’s – it’s just kinda from this email. I was happy to speak to
you today. I called her and asked for the information about
lawyers in the area because I was looking for a lawyer to – to
do the Power of Attorney and legal wills for our – the family.
Yes and this is the references she send me in this regard – a –
about the lawyers in the area who can help with lawyer – with
wills and Power of Attorneys – yes. I shared – I shared with
her everything as I mentioned since that very friendly – I
explained to her that we wanted to do the Power of Attorneys –
yes English is what this about.
Q. And so were there wills and Powers of
Attorney prepared?
A. Actually we wanted – for everyone in the
family, we wanted to do Power – my husband gave me Power of
Attorney, I gave him – we wanted to do everything because it was
right thing to do in the family. And what we actually did, we
made Power of Attorney assignment for each of us. We wanted to
go all together and wills, same thing, all four of us. We have
Power of Attorney made at the same time. My husband to me, I to
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him and both of them. Yes. That what I was looking for at that
time. It was the right thing to do in the family, actually –
yeah especially with parents and they were going to the English
classes every day and I – no I don’t think I shared. Does this
come through information with Yana at this point I just asked
her for the information about lawyers. I expressed that we want
to do Power of Attorneys and wills and in fam – in the family.
Q. Could you turn now to Tab 41 in Exhibit 1(A)?
A. I’m sorry. Could you repeat please?
Q. Yes, Tab 41. It’s page 232.
A. Four-one?
Q. Yes.
A. [Indiscernible]. Okay. Mm-hmm.
Q. And at Tab 42 – so it appears at Tab 41, we
have the Power of Attorney for Valentin Nikityuk.
A. Yes.
Q. And at Tab 42, Powers of Attorney for Alla
Nikityuk?
A. Yes. That’s right.
Q. And do you recall when these Powers of
Attorney were prepared?
A. When?
Q. When.
A. It – I remember – of course that it was fall
2009. I’m just trying to figure out the exact date.
Q. If you look at Tab 41...
A. Mm-hmm.
Q. ...page 235.
A. Yeah. It’s the 15th day of – I’m not sure
what....
Q. It’s actually – it’s clearer on page 239...
A. Mm-hmm.
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Q. ...the date.
A. Mm-hmm.
Q. If I can....
A. September.
Q. Yes.
A. I’m sorry. It – yes – September 15th, 2009.
Yes. We – we went to an appointment at law firm all together –
four of us, to do what I mentioned – yes.
Q. And do you recall who prepared the actual
documents?
A. Yeah, it was – everything was done at the –
yes law – law firm – yes.
Q. And you sat in on that meeting, could you
tell me about – could you tell me about how Nikityuks came to
sign the Power of Attorneys?
A. Yes. This is actually interesting thing that
I wouldn’t believe ever that Valentin forgot that he went as he
actually put it in his transcript that he forgot or whatever –
this appointment, it couldn’t be forgotten because finally we
decided that we need to go to North York – North York – North
York is a part of Toronto where Russian speaking people live and
there are so many services for Russian speaking people there.
And we found this firm – law firm, it was dealing with, I
wouldn’t say mostly with Russian people, but there are so many
Russian speaking, working there and it – they do this on a
regular basis for people who not comfortable with English. This
is why we decided to do this way, not to deal with Barrie and
interpretation, it seemed to be very complicated. And I made an
appointment, I found such firm in North York. I made an
appointment for certain day, it was decided that Pavel – the
appointment was for like 5:00 p.m. or something, it was decided
that Pavel would – will come from his work and we were supposed
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to drive from – Valentin would be driving from Innisfil with me
and my mom. So it’s easy, of course everyone’s taking 400 to
drive to North of Toronto, but Valentin, as I mentioned, was not
that comfortable taking highways and he looked into map – he
didn’t realize at this point that it’s a – in the map you can
see the straight street like Young Street and he knew that – and
I got him address around this was on Young Street – it should be
even here maybe and he said I – I can see that Young Street go
directly to this office. We need to go – I was trying to
explain it was gonna be busy with lights and it could take half
of a day to travel, but he insisted and we – he did it. And so
I assume it was very memorable because it took several – it was
a long drive. Very memorable – yes. But as I mentioned, it as
a law firm with many Russian speaking employees there – yes.
Q. And so who met with the lawyer? Did you meet
with the lawyer?
A. We were all together sitting – yes at the
appointment, all four of us – all four of us.
Q. And the documents that we have here at Tabs
41 and 42 are in English. So how did the Nikityuks come to
understand – or did they understand as far as you were aware,
these documents?
A. As I mentioned, this specific law firm has
experience with – you can – still you can tell this is kind of
specialization of this law firm to deal with people who do not
speak English. And they do this on a regular basis. They took
care of everything and that’s how it was done. I can – maybe I
don’t even remember this details, but as I mentioned, everything
was taken care of. We even travelled to – for this to be done
in the most legal way – in the most right way. We always wanted
to do things in the right way. This was our – actually – what
we were doing here and why I’m here. But this is my opinion,
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I’m sorry.
Q. Okay. Let’s go back to the emails between
yourself and Yana Skybin which are at Tab 64.
A. Yes.
Q. And email number seven, marked in handwriting
as number seven on page 404...
A. Yes.
Q. ...it actually appears to be an email between
yourself and Ruth Miller.
A. Email number...
Q. Seven.
A. ...seven from the Tab 64, this email is for
Ruth Miller, Settlement Counsellor of YMCA Newcomer Services of
Simcoe/Muskoka to myself. It was sent on September 1st, 2009
with the subject “A Lesson [Indiscernible] for our Parents.”
And email says, “Svetlana, Yana Skybin asked me if I knew any
older Russian people that your parents could meet and talk with.
I talked with a former student and find today about your
parents. She’s similar in age and was already – lady – she
would be glad to talk with your parents and gave me her
telephone number to pass on to them when they come to school
next week. I told Yana today about my own plans dealing with –
to talk with your parents. She gave me your email address and
so I will give you her name and telephone number as well as try
to talk with your parents next week when they come to school.
Her name is Emma Tatratova (ph) and her telephone number
is....Best wishes” and the signature, it’s formal signature of
Ruth Miller, Settlement Counsellor of YMCA Simcoe/Muskoka with
her office telephone and extension number and fax number. Yes.
Q. And so who had made the inquiry about having
some Russian speaking friends for your parents? Do you recall?
A. It was none [sic] of specific – it was
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absolutely natural thing – good thing to do for my parents,
everyone was always looking for someone Russian speaking so they
would communicate and it – this email just telling that I was
communicating freely with myself – I was communicating very
freely with YMCA of Simcoe/Muskoka Newcomer Services simply
[indiscernible]. Nikityuks’ English teacher, her name’s
Jennifer (ph) she communicated with me all the time. I stopped
by and she expressed how – what she’s feeling, how the Nikityuks
doing – parents doing there. I communicated with Ruth Miller, I
communicated with Susan Green a lot. At some point it was an
issue when my parents – we were talking that at some – at some
time I need this car for my needs as well because I – I have my
own needs also actually. It was always in the picture of this
family as well. We were talking about my doctor’s appointment,
that my – that is during the day and I had a meeting with Susan
Green and I just expressed these needs because we are share –
sharing this car. And Susan Green, I was asking her would it be
a problem if parents missed some days because of that – because
I needed the car. And Susan Green suggested that if it’s – you
come to that, that transportation through that course could be
arranged with parents if – if such - such [indiscernible]. So I
might – sometimes even Valentin drove to the classes with me,
then I might take the car and go for my – take the car to use
the car for my needs. It was all – also that possibility how we
did it. So we tried to do everything – to be for each other
always. Trying – trying to resolve things and in this regard, I
have to deal with YMCA of – YMCA Newcomer Services and they
[sic] employees to discuss needs of the family.
Q. Let’s now look at email number 18 which is on
page 408. And this appears to be an email between – from you,
Ms. Danilova to Yana Skybin on September 28th, 2009.
A. I’m sorry, what number of...
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Q. Yes.
A. ...email?
Q. Page 408 and it’s email marked number 18.
A. This is email from myself sent to Yana
Skybin, dated September 28th, subject the reply to email with
the subject “Thank You Again”. Yes, this was what I was
referring before, why actually we cancelled this Honda because
it’s indicating here, my parents – “Hello Yana, My parents just
travelling to keep attending their classes since new doctors’
appointments appear almost every day.” That was the situation
when we cancelled this Honda. It was – it – it – it’s exact
situation. With new doctors’ appointments appear almost every
day. There – there are two of them – two – my mom and Valentin.
So may appointment come by. “Of course this is a good for them
to have all this done” – medical test I mean – “Of course this
is good for them to have all tests done and that they can see
specialist. I’m even surprised how many of them need to be
seen. Been so busy, they cannot think about anything else right
now. Anyway, we really appreciate the support and my parents
send [indiscernible] to – to service Svetlana.” And it was in
respond [sic] to previous email from Yana Skybin to me dated
same date actually, but it was sent at 12:29 p.m. – previous
email number 17. So original email was sent from Yana to me,
it’s email number – number 17, dated September 28th, but 12:29.
And Yana was asking if my – your mom coming in soon and your
stepfather in woodworking and something – so it was respond to
her email. She contacted me first and I – she – she put me in
the position to respond in this way. But not – not to put me in
the position in the wrong way, just I’m explaining that it was
my respond [sic] to her email – yes.
Q. And how about email number 20, which is on
the next page 409? The email is from Svetlana Danilova to Yana
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Skybin dated October 3rd, 2009.
A. This is email from – email from myself to
Yana Skybin with subject “Appointment on Tuesday for Alla and
Valentin” dated October 3rd, 2009. It’s indicating that Yana
was – just “Hello Yana, I’m writing to thank you for being in
touch with my parents and to say that my mom is happy. She can
discuss all their needs with you.” We are so close – it’s now
my comment now. In this same email, “I am really appreciate – I
– I really appreciate you were trying to make arrangements about
my stepfather’s next appointment at Royal Victoria Hospital on
Tuesday.” And about that appointment, we do want – so it’s –
about the communications with Yana Skybin about the family needs
and as I mentioned before, those emails are just the tip of the
iceberg. I have so many phone conversations with her about
everything and as I mentioned, I shared everything and she
shared everything about her children. I shared the same about
our daughter – absolutely everything. She – she knew the same
about me as I knew about her.
Q. And email number 22, the heading is at the
bottom of page 409. It’s an email from Yana Skybin to Svetlana
Danilova dated October 8th, 2009. And you’ll see the body of
the email is on page 410.
A. The email number 22, Tab 64 from Yana Skybin
dated October 8th, 2009 with the subject “Appointment for
Valentin.” And here, there’s everything about “Sveta, I looked
up my schedule” – Sveta is short for Svetlana, used among
friends but doesn’t matter that much, “Sveta, I looked up my
schedule, my kids have an appointment at the optometrist that
day at 4:00 p.m.” You see very specific information – “my kids
have an appointment at the optometrist that day at 4:00 p.m.
I’m sorry, but I won’t be able to come in October. Please let
me know if your parents need help in the future. I will check
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my schedule and if I can, I’ll definitely come. I also want to
make plans with you to meet on Sunday, not this Sunday, but
maybe another Sunday you have free to go to the Ukrainian Church
and then go to the German [indiscernible] not far – far from the
church for a cup of coffee and a German pastry. Could you
please give me some dates? Look forward to meeting you in
person.” The signature is actually Yana Skybin, [indiscernible]
Settlement – Settlement Counsellor. She shared with me at that
point that she is [indiscernible] settlement counsellor that did
not guarantee her position. It’s not full-time position, so it
– that she also shared with me. Doesn’t matter that much
although....
Q. Okay. And in that paragraph – pardon me,
email number 23, it appears to be your response later that day
on October 8th, 2009.
A. Email 23 of 6 – Tab 20 – 64 is from myself to
Yana Skybin dated October 8th, 2009 “Appointment for Valentin”.
“Dear Yana, First I would like to thank you very much for
everything and please do not worry about the next appointment.
I would love to go to the church with you, hopefully we will be
able to make it next Sunday. Just send me a time and where we
gonna meet. I’m looking forward to meet with you. Sincerely,
Svetlana.”
Q. And then just to follow through, email number
24 dated October 13th, 2009 to Svetlana Danilova from Yana
Skybin and you’ll see the body is on page 411.
A. Yes, I can – email 24 from Yana Skybin to
Svetlana – to me, sent October 13th, 2009, subject “Appointment
for Valentin” – actually reply to the email with the subject
“Appointment for Valentin”. “Dear Sveta, It was nice to hear
from you. I am available to go to the Ukrainian Church this
Sunday. The service starts at 9:30 a.m. I believe. The address
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is 19 Parkside Drive, Barrie” – it’s downtown. “There is lovely
German coffee just two minutes away where we can sit down and
have a dessert and talk” – and talk. “The service is in
English, I just wanted to warn you.” That I would understand
she – she probably didn’t hear me spoke – speaking English by
that point. Yes.
Q. And so did you attend church with Ms. Skybin?
A. Yes – yes, it was arranged through emails.
It was first time I met her in person. We met in church and it
was my first time in this church as well. It’s very cozy church
in the downtown area of Ukrainian and Russian community gathers
together. It’s very important point of meeting for the
community. We met in this church, it was – yeah and after – in
the afternoon we went to some café – yes so we had coffee and
again, we had long conversations. I was kind of happy to have
some time to myself with a friend as I considered Yana at that
point, talking and the conversation was so nice. Again, we
shared everything both ways. She was talking about the divorce
she was going through at that point, about her husband – very
specific personal stuff. Yes, I think that like that.
MS. CHAPMAN: Your Honour, I think this might be
a good time to break if that pleases the court.
THE COURT: Just one question for clarification,
counsel. It may be I’ve heard this or maybe I
will hear it, but given that the Nikityuks moved
up in August of ‘08 – moved to Innisfil, so when
did they start the English as Second Language
classes?
MS. CHAPMAN: Q. I believe it was the following
summer, but Ms. Danilova, would you like to clarify that point?
A. They started to go to English classes of
September 2009. But the previous arrangements when they first
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met with Yana was in August 2009.
MS. CHAPMAN: Yep.
A. Yes.
THE COURT: And that seems to be when the
communication starts between the plaintiffs and
Ms. Skybin in August.
MS. CHAPMAN: Yes.
THE COURT: August dates you’re giving me as
2009, not 2008.
MS. CHAPMAN: That’s correct.
THE COURT: Just want to get the timelines in
order. All right. That’s fine. I will break
‘till two o’clock and we’ll come back. And as I
told counsel, I have to leave a little before
four to get to another meeting, so we will press
on until just before four o’clock.
R E C E S S
U P O N R E S U M I N G :
THE COURT: Ms. Danilova would you return to the
stand please?
MS. CHAPMAN: Q. Ms. Danilova, if you recalled
before lunch we were speaking about your corresponding with Ms.
Yana Skybin. Let’s move on and talk about Nikityuks and their
involvement with the YMCA. So we understand, I believe the
evidence is that they took English classes through the YMCA.
A. That’s right.
Q. And could you tell us about those classes,
when they were, how frequently they attended?
A. That’s what Yana explained me during this
conversation over the telephone with her August 2009. So it was
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conversation between me and Yana that she explained me that the
English classes take place in Barrie, it’s a five days a week -
weekdays, five hours a day with a break for lunch. Nine to two.
[Indiscernible] they are free of charge for people who – who
qualified – and my parents will qualified [sic]. I explain –
explain who they are to her during the – that first conversation
with her. I explained that they came under the sponsorship
agreement with me. And basically those terms I agreed and
proceed – I told her okay I would like to proceed with those
terms. Yes, that’s what – that were the terms. I agreed with
Yana Skybin during the first conversation with her. Yes.
Q. And did the Nikityuks work on their English
while at home?
A. The – as I recall they had homework almost
every day. They had some notes from the classes – yes I did. I
mean – yes they – they had homework – yes.
Q. Did you work with them on that homework?
A. My mom sometimes ask me about something.
Valentin sometimes asked for – for something. Valentin was not
that much interested in the homework, but my mom was trying her
best and spent a lot of time at night – yes she asked me to
explain something – it – yeah again during our normal
communication in the family. It was a part of the normal
communication in the family at that time they attended English
classes. Yes, that’s right. I would say so.
Q. So we’ve been talking about the summer and
fall of 2009, what about throughout 2010? Did they continue to
attend those English classes at the YMCA?
A. Yes, they did.
Q. And then into the early part of 2011, were
they still involved in the English classes at the YMCA?
A. Yes they did. They – they were going to the
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best of my knowledge, they were going to the English classes
from September 2009 to the day they left, that is October 17th,
2011. They were attending English classes.
Q. And at some point in 2011, the topic of
Social Housing comes up. Could you tell me what you recall from
the initial discussion – discussion regarding Social Housing?
A. It started in the beginning of 2011. My mom
started the – to tell me on different occasions that they met
someone from Russian community who live – who the family living
in Social Housing and they’re starting to talk about that with
different people – different people – actually – yes, she became
– once she got this knowledge about Social Housing, she became
very interested in that topic. Yes. And she was just – from
the beginning it was just general conversations about Social
Housing. She was telling the – she knows people living in
Social Housing. I didn’t react that much. There are many
things going on in Canada. It’s how it started. But in time,
my mom started to tell – to apply the situation with Social
Housing to our family situation. And that – I was trying to
explain her what is a Social Housing about. I even did some
additional research through the internet to obtain the
eligibility criteria to know what I’m talking about with my mom.
And I was trying to tell her what the Social Housing about in
general. I was trying to explain who was getting Social Housing
here. It should be eligibility criteria for that. I was
talking to her in very plain language, not like I am even saying
now. But at first it was like that. Later it was going into
like April and May and my mom started – starting to tell a
different – okay – yes, you know everything about Social Housing
– yes I can get, but – but you know what, people saying things
like it’s just 200 per month, doesn’t that save – that – doesn’t
that sound so attractive to you as well? I explained her again
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that it’s not about our family. It’s people pay that little
because they – they are poor, they do not have income to pay for
them. But mom re – referred that I – I don’t know – somehow
people doing that, it doesn’t mean they are poor. I’ve seen
those people, they didn’t look poor to me at all. And since you
are being so many mistakes, you paid like how much like 1,400
for that Etobicoke apartment – people can pay 200. It – it
should be done somehow, it’s just need to think about that. And
wait – she was – she was getting more specific. She was
referring again to this that you’re doing so many mistakes and
you know, it says even you – you – know things in general, but
you know, things – nothing is a hundred percent, it’s her
actually saying – and somehow – sometimes you can do things that
you think you cannot do – something like that. And you know,
we’re going to YMCA and there – Yana Skybin who – who is helping
all Russians in every aspects, sometimes when people couldn’t do
without her – and Yana Skybin is a real specialist, this is – is
her position. She is helping Newcomers and you know how many
Newcomers going through YMCA Newcomer Services and – my mom said
I – you would know Russian – Russian speaking people not that
many of them, but all of them referring to Yana Skybin as a very
knowledgeable specialist. She helped so many people and you
made so many mistakes and that became the topic of my mom – the
conversation with me. She started to convince me that I should
– I should listen to Yana too.
Q. And so how many conversations?
A. It was just going on and on when we – we
always share every day. We always share everything – shared
everything and whatever you talk, Social Housing topic came up
in context with something that like, you know, those people they
are so great. They worked as doctors in Russia and you know
they are living in Social Housing. So Social Housing again and
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again in the context – in different context. And in reference
to Yana Skybin, more and more [indiscernible] into summer. So
that – now you should reconsider probably because it’s YMCA
Newcomer Services, it’s for Newcomers. It’s services you didn’t
know about, it’s not the area of your expertise. You are not a
Newcomer settlement counsellor. You’re mathematician. How
could you know? What you find in the internet is just general
information and things like that. Yes.
Q. Pardon me, did you have discussions with
Valentin about Social Housing as well?
A. At that point I would say no. I would say
no, but my mom – my mom always – no I would say no. Another
thing is that while telling to my mom that Social Housing is not
a plan to situation in our family, I – I actually indicated to
her even in several conversation – several occasions that if
you’re still thinking about that, it – it should be against the
law. It couldn’t be done in a legal way. You don’t need to do
something illegal here if you are – so I – I was telling her
just things like that.
Q. Could we turn to Tab 65 of Exhibit 1(A)
please? And it’s page 421.
A. Yes.
Q. And more specifically, it’s marked as email
number 15...
A. Mm-hmm.
Q. ...email 15...
A. Yes.
Q. ...Yana Skybin and Svetlana Danilova dated
June 28th, 2011.
A. Yes. Email number 15, email from Yana Skybin
to myself sent Tuesday, June 28th, 201l, subject “Wednesday”.
“Sveta, The weather is mixed. I together with [indiscernible]
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decided to meet at my place for lunch. Can you be there at
around 12? Afterwards you could go to YMCA and meet the school.
My address follows” and the address. “We want to see you” – and
the address I guess I can “8 – 86 Russell Hill Drive, Barrie –
meet Bay Point and Young. We want to see you so much. Yana.”
Yes, I remember what is this email about exactly. My mom
started to be more and more specific about Yana. As I continued
to tell her that, you know, what you are asking me here is
basically to break the law. You cannot – normal – any legal way
to obtain Social Housing for you. Besides, there is a long
waiting list and even with this waiting – waiting list as I was
telling to my mom, she said, you know what, it’s not – it’s not
your problem. You know this – what my mom was telling me. It’s
Yana will explain you everything. But we are not independent
here and we need some preparation from your side. Then it will
not be your problem. You need to talk to specialist – the
specialist is Yana here and you need to meet with her and she
will tell her – tell you. It’s not – even waiting list is not
your problem. I just need a little bit of preparation from your
side. And this is the point. Then I said no for the first time
probably in this huge topic, it’s – it’s big actually – where
you live, it’s a big – right? It’s compared with health – it’s
big arrangements in your life where you are gonna live or how
you do things. And at this point in regard to Social Housing
obtaining in legal way somehow with the help of settlement
counsellor of YMCA who knows things that I do not know, I said
no to my mom. And I didn’t go for that meeting with Yana. She
– my mom said to me go to Yana’s, speak to her and then Yana
approached me with this meeting. I didn’t go. And this –
actually, this way about surrounding this email.
Q. So did you and your mother speak about Social
Housing after that conversation?
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A. After that conversation my mom is insisted
that I just go to make application to Social Housing with her.
She said okay, you do not wanna talk to smart people, you – all
I – I’m asking of you, I cannot do this myself. I do not know
English and I’m asking you just to go and fill out the
application for Social Housing. And we will see what we will –
let’s – she – let’s give it a try. And just fill out
application for us at Social Housing. I said no again. I said
no I’m not gonna do that. And to – to – so I explained why so
many times and I’m just – said – said no again.
Q. And did you ever assist Nikityuks with
filling out a Social Housing application?
A. No.
Q. Let’s now turn to the weekend of August 20th.
What do you recall from that weekend?
A. This was the weekend when my daughter with
her fiancé came to visit. This weekend was remarkable because
we set up the gazebo and that was – was purchased a kit from
Costco – from the same weekend I remember that my mom and
Valentin went to the birthday party to Yana’s place. And my mom
said that she ever think about this upcoming birthday party with
Yana. She shared that they were gonna go to that party with
Yana and after they came from that birthday, she shared what
even Yana served at that birthday, so she was very open what was
at that – that birthday. I even remember what Yana served if
it’s – it made sense, I don’t – exactly – because we – later we
served the same to our friends. We just tried an idea. She
served potatoes wrapped in bacon and we never served – did it
before and just so – we were communicating – absolutely –
perfectly in the family during the – that weekend. Besides,
they were so inspired on – all – all the family with upcoming
wedding of our daughter, so we were all so happy that our
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daughter is gonna get married soon. There was – there no
specific arrangements about a wedding day at that point, but we
were thinking about dresses with my mom and about the taste of
Pavel daughter’s wedding at – it was – for me 2011 was the
happiest year of – in my life actually. I was with wings
because I – my daughter found the guy that we liked, both I and
my husband, and we were looking forward to attend our daughter’s
wedding as they were planning their wedding in Toronto first.
It was – you’ll be Civil ceremony and then they will get – they
– they’re planning the wedding in Germany as a church wedding
that we all – all of us were kind of happy about what’s going on
in our family. Yep.
Q. And Mr. Danilov gave evidence about
Anastasia, your daughter and Niklas, who was her fiancé at the
time, also being at your home that weekend.
A. Yes. As – as usual, it was a usual – the
usual – they came on Friday, they – and they stayed Saturday and
left Sunday night.
Q. And we also heard evidence about some
discussions that were going on in the kitchen on Sunday, August
22nd between yourself and your mother, Alla. Do you recall
those discussions?
A. Yes. Valentin also participated I believe.
There was a discussion – it was – I don’t know how to call this
a discussion because it was same thing about Social Housing.
And just because my daughter was there as well, my mom just kind
of took this opportunity to talk about this Social Housing in
the presence of our daughter thinking maybe Anastasia will be a
– or – or will tell her something new or – and it – but we all
were telling that no, it’s absolutely not applicable to our
family. And it’s – the Social Housing is for poor and we are
succeeded – we are kind of succeed – we are so grateful to
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Canada that we are okay. And even – at some point I believe I –
I said to my mother you have – you – you just think that you
have the same level of living that IT professional has here in
Canada, because we live in the same house, all four of us -
Pavel was IT professional. But we share the same food, the same
– the same furniture, the same house. It’s good level of
living. It’s – the Social Housing is for poor and we are not
stealing from homeless. Yes, that’s what – yes as you can call
this discussion, but not – she was persistent and asking the
same and the same, but we were patient always saying that we are
not this kind of people and it’s not a situation and we need to
break the law.
Q. But did your mother express a desire to
leave? That she wanted to move out of your home?
A. In 2011, it was only about Social Housing.
It – it just her point was that we made a lot of mistakes from
your point of view and there are people who know – who know
things much better than us. And who can help – who can even cut
– cut their waiting list because they are old, they cannot wait
like five more years. She knew that it might take five years to
wait on the waiting list. But – and if she was asking for my
cooperation of some sort and she was referring of that
cooperation to – actually to cut the waiting list and this is
mostly what I referring as breaking the law that I didn’t want
to do – I didn’t want cooperation. She was telling those words.
Q. Did she explain to you what she meant by
cooperation?
A. Not exactly, but you know, it was in the air
– air actually always in the Russian speaking community and
things like that – in Russian speaking community there this idea
that, you know, what’s the abuse? What’s this abuse? Nobody
goes to jail. Big deal. You – you say something abusing you,
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you go somewhere shelter, it was even known in Russian community
that you might need to live for some time in shelter, but the
result is you end up in Social Housing and you are start paying
$200 per month for accommodation living in Social Housing.
Q. Was there disagreement? What – was it just
ongoing discussion? Can you elaborate in terms of the
discussions surrounding Social Housing on that specific day – on
Sunday, August 22nd, 2011?
A. To be honest, I don’t really remember the
specifics because it was – you know, it was conversation like
going circles. And we didn’t even pay – sometimes, you know, it
was just we were so patient and saying mother, I told you
already how – you see where we are and where Social Housing is –
things like that. And I don’t even remember. It – it couldn’t
be something new on that weekend of August 20th. It was the
same again and again. You made mistakes, Yana is a specialist.
That’s it – yes, I would say so.
Q. Were you angry?
A. Like I’m talking now, how can – can I be
angry? I understood – I understood – what I understood that
what she saw there in context of Social Housing, she saw $200
per month and accommodation, very comparable for what they have
back in Soviet Union maybe. That no – no big deal. Social – it
was – everything was social in Soviet Union and – besides this
kind of cooperation, I – I – just indicated that we are not
cooperating in any – in any way in – in context and – so I’d
also – I already told you that my answer to all of that would be
no in any way. I made up my mind and I told you no back in June
when Yana asked me to meet with her. And there – I was just
keep referring to that I already said no, I’m not gonna do
anything and you will not convince me to do anything for you.
I’m sorry but I – in this situation I – I should say no. It’s
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illegal. It’s against the law. I am not going this way.
Q. And where were you when this discussion was
taking place, do you recall what room of the house you were in?
A. Weekend of August 20th? It was in living
room with living connected to the kitchen. Yes, main floor – it
was on the main floor.
Q. And did you become physical with your mother?
A. Not at all.
Q. Did you put your hands on your mother?
A. No. Never. Never.
Q. Have you ever put your hands on your mother?
A. Of course – of course not. Never.
Q. And the Nikityuks also alleged that Mr.
Danilov threw dishes at the wall.
A. Never happened.
Q. Did he throw any dishes at the wall on
Sunday, August 22nd, 2011?
A. It’s – it’s – it never happened – not on
August – never happened.
Q. And what about the glass? It’s alleged that
he threw a glass at Valentin’s feet.
A. Never happened. Everything just made up.
It’s a story of imitation of their abuse. I – I was supposed to
– maybe – probably to participate in all this [sic] stories, but
I rejected so how they – but it’s gonna be – the next is gonna
be my opinion and I don’t wanna actually express my opinion
here.
Q. And did you believe your – that the Nikityuks
were not happy living with you in Innisfil?
A. Absolutely not. They were happy. Absolutely
happy. How – if – they were happy, but if even they had
something about – some idea about living separately, they didn’t
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express this idea to me at the – in 2011 because they were
completely occupied by this idea of Social Housing. And in –
this is actually the point, if they expressed any ideas about
separate living, we might think about that. We might – as we
always there for each other and if they felt somehow
uncomfortable in certain situation living in – in the house with
us, you know, we could pick up this idea and think about maybe a
– upgrading our house, maybe purchasing the house with separate
– I know – separate entrances maybe. It could be a possibility
because things were improving with our finances as – they just
with the Social Housing, they were, I think obsessed with this
idea.
Q. So we’ve also heard evidence about the
Nikityuks having a doctor’s appointment the following day on
Monday, August 23rd. Did you attend that doctor’s appointment
with them?
A. Monday – yes – yes they had an appointment –
I didn’t remember exact date, but that date came from the
emails. There were emails – he emailed here indicating this set
appointment and this is why. Yes, it’s the 23rd – Monday...
Q. But do you recall any specifics...
A. ...the 23rd.
Q. ...from that doctor’s appointment?
A. It – normally, every three months they have a
doctor’s appointment with Dr. Mossman (ph), their family
physician and Dr. Mossman (ph) is a ge – geri – geriatrics
specialist that is why they had their check-up every three
months. And that was check-up appointment for them. Yes that
regular, routine appointment.
Q. If we can turn now to Exhibit 1(B), Tab 137,
page 839.
A. Yes.
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Q. Are you there Ms. Danilova?
A. Yes.
Q. Okay. And just for the court record, these
are the YMCA log of Yana Skybin dated August 19th, 2011 to July
5th, 2012. And they’ve been addressed earlier in Mr. Danilov’s
examination and cross.
A. I’m sorry, I was confused actually with the
date of the doctor’s appointment. Because you referred to the
date of the doctor’s appointment as August 23rd – previous –
your previous question...
Q. Yes.
A. ...this is why I was confused.
Q. Okay, sorry.
A. Doctor – doctor’s appointment was August
22nd, that was Monday. August 23rd is Tuesday.
Q. Oh my apologies. So the Sunday that we were
talking about, would that have been Sunday, August 21st, 2011?
A. That’s right.
Q. Okay. I – I apologize. That’s my fault. I
had the wrong date. So then Monday would be August 22nd?
A. That’s right. That’s why I was confused with
the date of the appointment.
Q. My apologies. So I would like to have a look
at Ms. Skybin’s entry for September 30th, 2011. And at the
first line, she alleges that things have got – gotten, she says
gotten worse and peace did not last. Do you know what Ms.
Skybin means by that statement? Were things worse at home than
what they were alleged to have been?
A. No – this whole story is – it’s – it’s just
made up story. This is why I – I’m experiencing difficulties
actually answering this question because it’s all like worst
thing to – what worse from what? Because, you know, if you can
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see here – there – you know, this – this is – I understand that
it was written as alleged abuse, but it says for example,
“Svetlana warned them” – parents as I can see here in this –
Skybin’s log dated September 30th. In this log in the middle,
“Svetlana warned them that there is just enough food in the
fridge and if they need anything else, they should buy it
themselves.” This is the sentence. What’s – what’s wrong with
that? “Svetlana warned them” – what’s wrong with that? “There
is just enough food in the fridge and if they need anything else
they should buy it themselves.” Is it good or bad or – for me –
for any reasonable and person with capacity – normal capacity,
it’s a good thing I – I addressed it – it says that there is
enough food in the fridge and if they need anything else, they
should buy it themselves. But she put – around – she put
something like that as bad thing. And then she’s putting
[indiscernible] and even more bad things like daughter yells at
the mother, [indiscernible] – so all this is just – I don’t
know. If it says it’s got worse then – she – she had to write
this worse from some – something previous to that that Alla
abuses – so – so they – it’s actually they made – made up
everything.
Q. So between August 21st, 2011 and this entry
by Ms. Skybin on September 30th, 2011, were there ongoing
discussions about Social Housing? What was happening in the
house between yourselves and Nikityuks? Or do you recall?
A. They started to go to YMCA classes in
September again – new – new year again. And they – it fall – it
fall in Canada – fall is so, you know, the weather is the most
pleasant in Canada and they were even not that much around in
our home. They went on so many trips; every weekend they
somewhere in a trip. Then they started to go to Barrie for walk
a lot. Previously they mostly went to the Innisfil Beach Park
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that close to home, but starting from September 2011 they
started to go to Barrie even for a walk going to Lakeshore and
they were going to Barrie for so many events like meeting with
the mayor of the Barrie. They have pictures – showed us
pictures and – so they were very, very active during this time I
would say.
Q. And did they express that they would – were
going to be leaving the home?
A. During that time? No they – they started
actually even babysitting for some – it was [indiscernible]. My
mom was telling me that there is a student at YMCA, Lika Severin
(ph) and they wanted to help her with her children and even
stayed overnight in her home babysitting her children. They
also helped with children to Yulia Malycheva worked – as they
said that Yulia Malycheva had – wanted to start working and even
wanted to start her own business in cleaning and she had small –
little daughter. My mom helped her with her daughter. That’s
what my mom told – told me. They were very active in the
community and they were very popular in the community like they
knew everyone in the Russian speaking – yeah.
Q. So would you say it was pretty uneventful?
Do you recall any specific conversations with your mom or
Valentin?
A. Very routine.
Q. It sounds as though they were busy.
A. All – all – all the regular routine. We had
friends in September and that’s one of – friends – a couple and
one – Kouzminova – Larissa Kouzminova gonna be our other
witness, just telling that everything was absolutely normal –
normal in September when they came to visit. They will – I
remember what was in fall, we went to visit our other friends in
Mississauga and we went all together, four of us – we have so –
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no – everything routine, actually as – as usual.
Q. So let’s talk now about October 17th, 2011.
What do you recall from this day?
A. October 17th, 2011 – the whole day? From the
morning?
Q. Well....
A. I’m sorry.
Q. I mean we’ve heard evidence that this is the
day the Nikityuks decide to leave the home.
A. Yes. That day around nine o’clock Nikityuks
left the home – yes. And what happened, I – we were trying to
discover what happened to our Scotiabank joint account with
them. And they didn’t – from start of October then in October –
around October 15th our account just disappeared from online
banking. We were trying to find out what was going on. On
October 17th, I actually had a chance to go to the local branch
and local branch in Innisfil – and asked the teller what
happened to our account. She said account was closed and when
she referred me to the branch manager, he was in his office and
I actually – we actually – our family had something special
relation – not special relationship, but I’ll explain. When we
move to Innisfil, we transferred our mortgage to that branch in
Innisfil and then we had an appointment with branch manager in
Innisfil because we were looking for better deal for our
mortgage. We had open mortgage at that time and we negotiated a
very special interest rate for [indiscernible] line of credit
with the branch manager because of our excellent credit history.
And he – I would say he remembered me personally and my husband,
and then I came to his office saying, “I’m sorry but I – I need
to talk to you and I cannot find out why my account was closed.”
It was very unpleasant conversation, you know, this topic why my
account was closed. And he said okay – and I – he actually did
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– we called a favour – he accessed the internal data – internal
system of the Scotiabank and he showed me on the screen that the
account was closed by Alla Nikityuk and Valentin Nikityuk. He
showed me on the screen that the account was closed on October
5th. So this is how I found out that the account was closed.
That – that’s what it is – what it is, but it was so unpleasant
why I didn’t know that my parents closed it – that account and I
was asking Scotiabank again and again. It makes me – it put me
in so uncomfortable position in front of branch manager. But it
is what it was. And then I came home. Of course it was – I
thought somehow I communicated - parents were home from classes;
they have dinner and then I told them I found finally why – why
you closing account? They didn’t say much to me, but I remember
Pavel did asked [sic] Valentin, why you close that account? He
said “because”. After that, I hear – they just went to their
rooms and then they went for a walk around the block and then
they came back from that walk. Sometimes they were in their
room for sometimes and then I was coming from outside, entering
the front door and I saw them coming down from – downstairs with
bags packed and I remember there were towels seeing from their
bags. That’s what I remembered. And they said - I was asking
what’s – what’s going on – what’s – where – where are you going?
And they said, you know what, we are leaving. We are not gonna
live with you anymore – walked away. So it was obvious that
they – they’re leaving - leaving – leaving for like forever
leaving. I said why and my mom said that it’s kind of better or
for worse, that’s what she said in her words. It’s for better
or for worse, but we do not need you any longer for anything.
Now – not for doctor’s appointment, not for anything. We have
very powerful people and this thing Valentin repeated so many
times. They were saying that – that they have very powerful
people behind them. That from now on, I’m gonna take full care
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of themselves – of them. And the – they just were very
persistent so no way to stop them from that. They obviously
were leaving and they had bags packed and the issue was this
key, then Pavel came out and was that conversation about taking
a car. That Pavel asked for our keys to return because we – I
also said that – you do not have – you do not have any insurance
because back – before we explained them that we have this
insurance on the car – on part – Valentin’s driving this car on
Pavel’s insurance and in case they would be living separately,
we explained that. Valentin would be on – will need his own
insurance. And so we – yes we didn’t want – want them to take
the car. Then Valentin – act – actually in this context about
powerful people, Valentin showed their cell phone like with
buttons – some button and he said, you know what, I – I – I’m
pressing this button and you are in trouble. Actually he said
this in Russian. I would like to – exactly the – the exact
translation, but I would translate it, this Russian word – word
between in trouble and unpleasant this – flavour. And at the
same time he dropped the cell phone that he always were – was
wearing with – to Alla feet – to the floor. And this is
actually very – how they left and that’s what I remember.
Q. And was that all the conversation you recall?
Did your mother say anything to you directly?
A. When they – when they left, they – they left
and they were going down the road. And actually even that –
that they were leaving down the road at 9:00 p.m. I don’t know,
it’s everything. There is no trees and neighbours probably
could see that and my mom, she was yelling – she yelled or
screamed and this word I don’t – I’m not sure how you – in
Russian, of course nobody understood, but she yelled that I’m
not your mother in – because I – I was still staying in the – at
the front door looking at them and in some hope they maybe
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change their mind. I was looking at them going down the street
and she just yelled this kind of things to me. Yes. I’m not
your mother anymore.
Q. Did you ask them where they were going?
A. I couldn’t ask them. She was in the
distance, I couldn’t ask anything – or you mean before or – no I
didn’t ask.
Q. Did Nikityuks tell you where they were going?
A. No, they didn’t.
Q. And we’ve heard evidence that you were
concerned about where they were going or where they might be
staying. Did you contact anyone after they left the home on
October 17th?
A. Next day, first thing I called YMCA
receptionist and asked if they came to English classes. And
they didn’t. I put a few – at first I put a few - maybe they
are staying with some friends, they had so many friends and if
they came to the English classes, maybe they okay, they just
doing something – arrangements with their lives. I don’t know.
It might be different arrangements. They – if they wanted to
live independently, they even can – not live at home and rent an
apartment. But it would – wasn’t – was not be ill – illegal at
least. Right. We could even manage things like that, but –
okay sorry. At the first – I didn’t know where they went. On
October 18th, I called YMCA there – the receptionist said that
they were not at the classes. I tried to call Yana so many
times – yes, left her messages. At some point she picked up and
I had very small conversation with her over the phone. She just
said to me that I can – I can tell your parents that you are
looking for them when I meet them. And then she said that I – I
can give you references in the community where you can find help
in your mental state and with your perfect English it will not
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be a problem for you. That’s what – literally what she told me.
Q. And did you call anyone else looking for
Nikityuks?
A. Oh of course. After they didn’t come to the
classes on October 17th, I started to call – I started to look –
to look for them everywhere. I called an emergency – I remember
and if – if they were registered in the emergency and I called
all the numbers I could find in their list of Rogers calls and
everywhere. I called – I called people searching for them.
Yes. It was the day after they left, October 18th and when –
and then the next day, October 19th, I called YMCA
[indiscernible] again they didn’t come to the classes again.
Then I got really stressed – distressed because no – nobody knew
where they were. We were thinking about going to police at
night October 19th if we still not – did not have any
information about them. And when I was calling Russian speaking
people actually I was thinking that I will need, if I go to the
police to report them as missing person, I – it would be good to
have the contacts of the people who might know anything about
them or two whom our parents can call to provide those contact
to the police so police can contact someone it’s – to ask about
where parents can be. Yes. Sometimes I asked people if they
would be comfortable talking to the police, not even – not even
comfortable – comfortable is not the right word, if they can –
just can because not all Russian can speak English. Especially
those Russian speaking parents who knew – it was the students of
the English classes and not all – not all – mostly all of them
cannot communicate English – in English over the phone and I was
trying to find someone with whom police can communicate about
parents. And eventually I found this person and then we
reported to the – them to the police as missing person. It was
– we went to the South Simcoe Police in Innisfil in the evening
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of October 19th, reported them to the police and constable took
this investigation. He asked me at some point to provide him
with a contact information – contacts – telephone numbers of the
Russian speaking who might know anything – something about the
parents to whom he can communicate and maybe find out more
details that I couldn’t find out while I was searching. It was
a part of their normal police investigation to call people who
might know anything. And if I can proceed with this, so then
constable took this investigation over in the evening of October
19th. He have this investigation actually was complete,
received a call during the night – the night of October 20th, so
it’s - we reported them in the evening of October 19th and
received a call from the police – from constable at night
October 20th and constable said the he is closing this case
based on that he contacted Marina Tulov (ph), I provided him
with her contact as a Russian speaking who is free that – free
in English and he contacted her. And this Marina Tulov (ph) she
said that she knew that parents how say it – and sound – house –
how you – this is a right expression for that – how he told me –
found them housesitting.
Q. Safe and sound?
A. Safe and sound – yes. Yes, literally what he
told me. This is enough to close this investigation. This was
enough to close this investigation of a missing person. Yes.
MS. CHAPMAN: Your Honour, is this a good time to
take a break?
THE COURT: All right. We’ll take a break and
then we’ll return in about 15 minutes.
R E C E S S
U P O N R E S U M I N G :
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THE COURT: Yes, shall we continue?
MS. CHAPMAN: Yes, thank you. Q. Ms. Danilova,
so we’re gonna turn now to October 24th, 2011 and we’ve already
heard evidence that this is the day that your parents, the
Nikityuks, returned to the home to collect some of their
personal belongings.
A. That’s right.
Q. So what do you recall regarding that day?
A. In the morning of October 24th, 2011, I heard
knocking on my front door – policeman was knocking very loudly
on the front door saying, police, open up, police, open up,
police. And I came to the door and four police – constable
asking what he – what he say – he says – so I – what – what I
saw, right – what I saw?
Q. And what he said to you, you can elaborate
on.
A. So there was a police constable saying that
there is Alla and Valentin or something along there – I – I – I
actually, I don’t remember the exact wording, I was so shocked.
I opened the door and I believe I let him in. I am not even
sure because I was so under – so distressed of that – at the
police knocking to the door, I believe I let them in and he
represented Dorothy as a social worker with him. Then he
represented muscle – he referred to two guys as muscles for
moving – moving. I recognized those two guys – one YMCA student
from English classes and I even remembered his name
[indiscernible] Philipson (ph) because my mother showed him on
the many pictures from the YMCA and on the – on the pictures
from their parties of Yana Skybin. And another person was in
the vehicle, she was also a YMCA student. And the other guy,
police referred to as muscles was Ilyana Lavreka’s (ph) son,
Nikita Lavreka (ph). There was another guy, truck drive. So
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police asked if they can enter the house because parents need
assistance in moving. I – I didn’t confront him somehow, but I
called my husband, asked what they are saying – there is a
police car – they do – my husband said whatever they want to
take, let them take whatever they want and that’s it. So they
started taking – they had boxes with them, so they have a truck,
boxes – they started packing and they were taking the whole day.
The police constable was – was sitting mostly on the bench in
the hall front – front hall – foyer – front foyer. That
Dorothy, that policeman referred as a social worker,
specifically he said, Dorothy, Social Worker, she was with my
mom all the time upstairs and you know, [indiscernible] was
helping with carrying as well and truck driver, Victor (ph) he
was doing nothing of – the whole time they were helping just
packing. But at some point I was in the garage and he
approached me and he said, you know, you have so beautiful home.
If – if you need anything renovation [sic], I’m in renovation
business and he gave me his telephone number – his cell number
just because he – it was his – his business. And he also told
me that it’s so – he was Russian speaking – he was Russian
speaking. Actually, all of the people were Russian speaking
except Dorothy, referred as the – as the social worker. Well
this Victor (ph), truck driver also told me, you know what, it’s
so bad to....
THE COURT: Nope. Excuse me...
MR. MAE: Yes.
THE COURT: ...we’re getting into hearsay again.
MS. CHAPMAN: Yes – yeah.
THE COURT: If your client can start going in a
direction, I would appreciate if you just help
her in...
MS. CHAPMAN: Sure.
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THE COURT: ...refocus her because...
MS. CHAPMAN: Okay.
THE COURT: ...sometimes she goes on with a long
story and may not even be responding to your
questions sometimes.
MS. CHAPMAN: Thank you.
THE COURT: I don’t think it’s relevant as to
what the truck driver said.
MS. CHAPMAN: Of course.
A. And I – I’m – I’m sorry, but it’s important
because he said that it’s...
THE COURT: No.
A. ...so bad how I treat my mother.
THE COURT: I’m instructing you not to tell us
what the truck driver said to you unless he’s
going to give evidence later at this trial. And
your counsel will ask you questions where you can
give answers. Don’t – don’t go on and answer if
I’ve already indicated you shouldn’t be telling
us that. Do you understand?
A. Yes, certainly.
THE COURT: All right.
MS. CHAPMAN: Q. You – you stated that you
believed everyone was Russian speaking, but was the police
officer Russian speaking as well?
A. No – no – sorry. Police officer was not
Russian speaking. Only in Ilyana Lavreka (ph), [indiscernible]
Philipson (ph), Nikita Lavreka (ph) and Victor (ph), truck
driver, Russian speaking people.
MR. MAE: Your Honour, forgive me for rising, but
I’m looking at Madame Reporter and we’re all
having some trouble with the names. I – I picked
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up Victor (ph), but I never picked up the other
names and I don’t think Madame Reporter did
either.
THE COURT: You’re talking about the name of the
social worker perhaps?
MR. MAE: I – I’ve got – I’ve got the social
worker, Dorothy. But I was just wondering if Ms.
Danilova could say the other names a little
slower so that we could try to at least get them
phonetically.
THE COURT: All right. I’m just wondering how
relevant all this is because I think the point
that you’re making is that they – her parents
came and packed and got their stuff out.
MS. CHAPMAN: Yes.
THE COURT: Is there more detail that we need to
hear about this particular event?
MS. CHAPMAN: Other than Dorothy, which I’ll ask
Ms. Danilova about now.
THE COURT: Because I think there’s more context
here than we possibly need if....
MS. CHAPMAN: There – definitely there is. Yes.
THE COURT: So Dorothy, is that the social
worker?
MS. CHAPMAN: Well she advised Ms. Danilova that
she was a social worker. Q. In fact what is Ms. – her last
name I believe is Archer – Dorothy Archer.
A. At first constable introduced Dorothy –
Dorothy to me just Dorothy, a social worker. That’s how
constable introduced....
Q. Right. But who do you know her as now? Do
you know her full name?
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A. Now I know Dorothy Archer.
Q. And do you know what organization Ms. Archer
was from?
A. I later discovered that Dorothy Archer is not
a social worker because she does not have licence of social
worker and not registered with college – Ontario College of
Social Workers and Social Support Workers.
THE COURT: I think the question....
MS. CHAPMAN: Q. But who did she work for?
A. She works as a coordinator for Transition –
Transitional Housing Program for shelter – Barrie Shelter for
Women and Children.
Q. Okay. And did you speak with Alla, your
mother, or Valentin during this move on October 24th?
A. Not a word. Not a word – did I – I didn’t
speak to anyone – except Victor (ph) – except the driver, Victor
(ph).
Q. Okay. So let’s now turn to Exhibit 1(A), Tab
67 please.
A. No, I’m sorry. I was actually not right. No
I was – no I was talking – it’s not – it’s not right thing to
say that I didn’t speak to anyone. I spoke – no I spoke –
because when they left, there was some conversation when they
were leaving all those people. Then they packed and then they
were leaving. There was conversation that Dorothy told me that
she will get back to me in a couple of days and she will provide
help I need in the situation – Dorothy as a social – as....
Q. Dorothy Archer.
A. Dorothy told me – yes. And then there was
some conversation about the documents because there was
something – Valentin told there are documents for you, I said
okay put them somewhere. That was it when they were leaving. I
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– I had some words with people, yes. It’s not fair to say that
I didn’t speak to anyone. But during moving I didn’t speak to
any – anyone – yeah.
Q. And that was the extent of the conversation
then?
A. Yes.
Q. So let’s look at Tab 67 in Exhibit 1(A).
A. Yes.
Q. And this is a letter – it appears to be a
letter that you wrote, Ms. Danilova, to YMCA Canada.
A. Actually which tab?
Q. Tab 67, it’s page 439.
A. Oh 67, I’m sorry. Sixty-seven. Yes, this is
a letter I wrote – mm-hmm.
Q. Now the date on – on page 440 is October 26,
2011. Is that the date that you sent the letter?
A. Yes, same day I sent this letter.
Q. Okay. And so why did you write to YMCA
Canada?
A. This is what I was trying to tell why I send
this letter to YMCA Canada. First – first of all, this
conversation with driver, it’s actually important if I can tell.
Truck driver during moving on October 24th.
Q. Yeah. We’re not going to hear that evidence
for the reasons stated.
A. Oh okay.
Q. Okay.
A. Okay.
Q. So....
A. Mm-hmm.
Q. Give us your explanation why...
A. Explanation...
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Q. ...as you wrote to the YMCA....
A. ...another – another – then another
explanation that – after parents left, it was obvious for me
that YMCA involved in that because of this conversation with my
mother about Yana Skybin who can help. It was absolutely
obvious for me at that point that I – I have to write this
letter to YMCA. The involvement of YMCA was absolutely obvious
for me at this point. And this is why I wrote this letter.
Q. Okay. What does – what does the letter
state? Why would you write this letter? Why would you want to
advise YMCA Canada of this situation?
A. I tried to explain every aspect in this
letter – I – I just wanted to give all the facts to YMCA. I
know about my parents, the arrangements with the parents and
what happened and – I just wanted to indicate my position in
this case and what I was relying – I was thinking that my
position should be heard here. It’s – it’s I – I thought that
it’s even more important for YMCA than for me to know my
position because I was – considered myself as a YMCA client in –
if they were assisting parents the same way they should be
responsible to me in the situation. That’s what I thought.
Q. And more specifically in paragraph 5, at line
2, could you read that statement?
A. “As a result of what has been described
above, starting from about last summer, my parents have been
putting us on a distance saying that they wanted to be
independent and live separately from us. They have started to
use the words, they should have never been applied to the
relationship in our family like violence, abuse and aggression.
That someone seem to be putting into their mouth.” Even that?
Q. Yes.
A. Because after they moved out I also received
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a call from Emma Tatrova (ph) – [indiscernible]. And Emma
Tatrova (ph) told that – what – what happened to your family.
They are – Alla called her and said that....
Q. Ms....
MR. MAE: Your Honour.
A. This is....
MS. CHAPMAN: We’re heading down the same path.
THE COURT: All right. I think you’re reading
that paragraph the lawyer wanted you to read and
you stopped hallway through it and started
talking. Did you want her to read more on that –
that sentence?
MS. CHAPMAN: Yes. Just to the end of that
sentence. So I believe....
A. “That someone seemed to be putting into their
mouth as it’s the only way they can apply for a Government
Social Assistance without taking in consideration our opinion as
sponsors. We have a dozen of witnesses like mutual family
friends, colleagues, neighbours or family physician who would
testify under the oath that nothing even close to that could
happen in our family ever. Basically they were taught by
somebody in YMCA what to write to the officials that someone did
a good job in doing that as they have been taught very well.”
Q. And so had the issue or the – the use of the
word abuse come up in discussion with Nikityuks?
A. Yes, like I mentioned before. They – when
they were referring to this – to the Yana as a specialist and –
these contacts that I do not need to worry about long waiting
list. I was told by my mom that it’s Yana who would take – who
would teach me how to do this and as I – we said before this –
even my mom told this what abuse – abuse that’s – actually there
is no exact translation in Russian for this word. And she was
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referred – it said so on something not that important and nobody
goes to jail. That’s was referred as Yana can teach how to deal
with this waiting list.
Q. So at the time that you write this letter,
are you aware that the Nikityuks are alleging you abuse them?
A. At this point, yes – that what I was gonna
tell that – that [indiscernible] and told that they communicated
this to Taksova (ph) that it is violence in the house and....
Q. Okay. We’re not going to talk about that
telephone call. But on page 440, the next page, in the last
paragraph first sentence and I quote you write, “We are asking
to clarify the position of YMCA regarding this situation.”
A. Yes. We are asking – this was the purpose of
this letter. We are asking to qualify the position of YMCA
regarding this situation. “Based on your response, we will
decide who is responsible in turning my parents [indiscernible]
so far away from their family putting all of us into position
where family is destroyed and drawn into financial trouble.”
And it is October 26th, 2011 – we are talking about financial
trouble. So we reviewed the right to proceed with legal action
and this letter was never responded.
Q. So you also – it appears on page 439, that
you copied this letter to YMCA Newcomer Services in Barrie.
A. I sent this letter by registered mail to
three – to three destinations: one, YMCA Canada, it’s the 1867
Young Street, Suite 601, Toronto, Ontario M4S 1Y5; the other
destination, YMCA Newcomer Services, 320 Bayfield Street, Unit
63A, Bayfield Mall, Barrie, Ontario L4M 3C1; and another
destination was YMCA Simcoe/Muskoka Association offices, 22
Grove Street West, Barrie, Ontario L4M 1M7.
Q. And did any of those YMCA offices respond to
this letter?
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A. None. I have never received any respond to
this letter.
Q. If you can turn now to Tab 68, the next tab
please?
A. Yes.
Q. Mr. Danilov addressed this letter in his
evidence. Do you have your own recollection regarding this
letter or is this from Mr. Danilov directly?
A. No, we did it together. We did it together,
basically. That was the right thing to do as considered at this
point that we had to send support to parents somehow and we sent
the support for them through YMCA because we didn’t know any
other address of them to send support to.
Q. And for the record, this is a letter from
Pavel Danilov to Susan Green, Director at YMCA Simcoe/Muskoka.
A. Yes, that’s right.
THE COURT: Sorry, what tab are we at?
MS. CHAPMAN: Tab 68.
THE COURT: Oh you’re into several pages of it.
It starts out the CRA – is this the one? It
starts out with a CRA authorization?
A. Yes, it’s it.
MS. CHAPMAN: Yes. Q. And....
THE COURT: So you’re referring to the cheque –
or sorry the letter to...
MS. CHAPMAN: The letter.
THE COURT: ...Ms. Green. All right.
MS. CHAPMAN: Q. And the next correspondence at
Tab 71 please.
A. Yes.
Q. And for the record, this is a letter again
written to Susan Green, Director of YMCA Simcoe/Muskoka dated
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December 15th, 2011. And this letter was prepared by you, Ms.
Danilova?
A. That’s write.
Q. And this letter encloses a void cheque.
A. That’s right.
Q. And again, I believe the letter addresses
that this is for support purposes for Nikityuks.
A. That’s right. I put it in my letter. “I do
not have any information about their current address and that is
why I’m asking you for assistance in regard of the sponsorship
agreement that my mother, Alla Nikityuk and her husband,
Valentin Nikityuk had signed with me before they came to Canada
in June 2008” – I mean “came to Canada in June 2008. And my
husband, Pavel Danilov, was a co-signer. My mother and Valentin
have recently closed accounts – all accounts” – I meant joint
accounts with them, “except one at CIBC. We do not want them to
close this CIBC account as well because this is the only way for
us left to support them. We have trusted the support money to
this account already and we will do that in the future on the
first day of every month. Besides, this is an account where
their Russian pension comes every three months. We would really
appreciate if you advise them so that you have a chance. The
one cheque for this CIBC account is attached so they can take it
and go to the bank. Even if they forgot everything and lost
their bank cards, they still can go to the bank and ask for new
access cards to replace the ones they lost.”
Q. And did Ms. Green respond to this letter?
A. No. But in this case, we didn’t expect – ex
– expect any response from her. It just was for information
because it was the only way to provide the information about our
support. We didn’t expect this Ms. Green to report to this – to
respond to this letter, I would say. No.
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Q. And did you believe you were making every
effort to provide financial support to Nikityuks during that
time?
A. Absolutely. It’s always been our point, even
if they left by some – some reason – doesn’t matter. Let’s – it
doesn’t matter, they – what the reason was, we always wanted to
support them and we were trying to do this by all means.
Q. Okay so let’s look now at Tab 72. It starts
on page 447. And again for the record, this is a letter from
Mr. and Ms. Danilova to the Ministry of Community and Social
Services November 10th, 2011. And we don’t need you to read the
letter Ms. Danilova, but do you recall writing this letter?
A. Yes, I do - of course.
Q. And it appears that you’re writing to the
Welfare Fraud Hotline in relation to the Nikityuks.
A. Yes, that’s right.
Q. And in summary, would you say that you’re
advising them that you are willing to continue to support
Nikityuks?
MR. MAE: Your Honour.
THE COURT: Is that – is that a leading question?
MS. CHAPMAN: Sorry.
MR. MAE: I think it might all be, Your Honour.
But that’s your decision.
THE COURT: You asked a few questions counsel
which invite...
MS. CHAPMAN: I understand. I’m – I’m trying to
keep...
THE COURT: ...the answer that....
MS. CHAPMAN: ...the witness from having to read
the entire letter.
THE COURT: All right.
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MS. CHAPMAN: Q. Could you tell us, instead of
reading this Ms. Danilova, what you’re stating in this letter?
A. Yes, it was the right thing to do because I
discovered that they received Social Assistance and I – I didn’t
want them to receive Social Assistance and I just decided that
it was my responsibility to provide the information that they
consider income at least with this kind of information and there
– a lot of other information saying that they obtained Social
Assistance not being eligible for that. And I always wanted to
support them.
Q. And then at Tab 73, we have email
correspondence which – or pardon me, with the same department it
appears of the Ministry of Community and Social Services.
A. This is be – because I did this short report
by all possible means. I did it over the telephone speaking to
the agent, through email and sent a letter by mail. It – it was
done by three ways. This is just a report confirming that I – I
did it through email as well.
Q. And then at Tab 75...
A. Yes.
Q. ...this is a copy of the – it’s just the
faxed coversheet for the letter that you had sent to the
Ministry of Community....
A. Yes. It seems to be a coversheet, but I can
tell that by that time we probably provided with – the Ministry
with proof of other support.
Q. And – so then at Tab 76...
A. Yeah.
Q. ...which is page 456, we have a letter from
the County of Simcoe Ontario Works.
A. I – I’m sorry. I – I should – actually this
letter on Tab 75 – previous question...
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Q. Yes.
A. ...a letter four pages – it might also – but
it’s answering for the request from the Tab 73 – very – very
request 73 asking for the following information is required to –
in order to initiate an investigation of alleged welfare fraud.
We also provided this kind of information, first and last name
and....
Q. Yes. Okay.
THE COURT: Counsel, I see it’s almost four
o’clock and I think you’re at Tab 76...
MS. CHAPMAN: Yes.
THE COURT: ...which is the letter from the
County Simcoe and I assume you may want to spend
a bit of time on that. So perhaps we should
resume tomorrow morning and then – do you need a
bit more time with this witness, do you think?
MS. CHAPMAN: I do – a little more time.
Shouldn’t take too much longer.
THE COURT: Or was it tomorrow that you had other
witnesses coming?
MS. CHAPMAN: Yes, we do.
THE COURT: And those are the witnesses who filed
affidavits.
MS. CHAPMAN: They have. And I – I haven’t
spoken with my friend, Mr. Bornmann, but I spoke
with Mr. Mae briefly, my intention was to file
those affidavits and allow counsel to cross-
examine on them because they are affidavits that
were previously filed on the motion for summary
judgment.
THE COURT: Yes.
MS. CHAPMAN: I think it would save the court
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some time tomorrow. I’m not sure how my friends
feel about that position.
MR. MAE: Your – Your Honour, my – my position
and I’ve not consulted with Mr. Bornmann yet, so
– maybe you may hear something different after
I’ve made my submission. My – my knee jerk
reaction Your Honour, is I want to hear the
evidence in-chief from the witnesses rather than
their affidavits, because if I simply cross-
examine them on the content of their affidavit,
I’m leaving myself exposed to matters being
raised in re-examination that have not been
considered. So I’d like to hear firsthand out of
the witnesses’ mouths what that evidence is.
Even if they read out their affidavits and maybe
that sounds somewhat asinine, but I don’t want to
find after the event that we – that the evidence
is not that which is contained in the affidavits.
THE COURT: Well what if they’re asked to adopt
the affidavit and if there’s anything further
they want to tell the court in-chief?
MR. MAE: I would have no problem with that per –
per say if – if that’s the – that’s the way it’s
gonna go down. But I – see I simply don’t want
to move along to cross-examination without
hearing what they have to say for themselves.
THE COURT: Is that fair, Ms. Chapman? They
adopt the affidavits that they filed and...
MS. CHAPMAN: That’s fair.
THE COURT: ...if there’s anything further to be
added....
MS. CHAPMAN: I think that – I really I’m just
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trying to use the best case of what Rule 20
intended.
THE COURT: Right. And the affidavits aren’t
very long in any event. They seem to basically
deal with one particular event.
MS. CHAPMAN: Exactly.
THE COURT: Large – in large measure. Mr.
Bornmann?
MR. BORNMANN: Your Honour, this is all news to
me.
THE COURT: Mm-hmm.
MR. BORNMANN: With your permission, I would like
the evening to consider the matter because the
affidavits do touch on a number of issues and
perhaps we can discuss amongst counsel and....
THE COURT: All right. We’ll – we’ll formulate a
plan tomorrow after you’ve given it some more
consideration and perhaps talk to your – your
friends.
MR. BORNMANN: Thank you, Your Honour.
THE COURT: Is there any urgency in hearing their
evidence tomorrow, is that the case or – like in
– are we – I’m wondering if we’re not gonna do
cross-examination of this witness until these
other witnesses have given evidence?
MS. CHAPMAN: Yes, there is some urgency. I’m
not sure when their travel plans to return home
are, whether it’s Thursday or Friday later this
week. I do know it’s a weekday because the – the
cost is less. So the plan was to have these two
witnesses tomorrow.
THE COURT: Initially we thought we’d be taking
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them out of order in any event...
MS. CHAPMAN: We did.
THE COURT: ...because the plan was that the
plaintiffs’ case would be finished. So...
MS. CHAPMAN: Yes.
THE COURT: ...counsel for the defence, is that
acceptable if we hear from these two witnesses
before the cross-examination of...
MR. MAE: Certainly.
THE COURT: ...Ms. Danilova?
MR. MAE: I personally don’t have any issues, but
my friend does.
THE COURT: I – I can’t predict how long you’d be
in cross-examination, but – with – of this
witness, but with Mr. Danilov it was quite
lengthy.
MR. MAE: Yep it – it was, Your Honour and I
suspect that I may be lengthy with this witness
as well.
THE COURT: So I don’t want – I don’t want to use
up the week with this witness if these – if these
other people are here and ready to testify.
MR. MAE: I’ll – that’s – that’s why I have no
problem with them jumping in, Your Honour.
THE COURT: All right. So....
MR. MAE: I’m good if my friend is.
THE COURT: Well we can discuss that again for
tomorrow morning, but it makes sense to me
because I think you expressed a – the desire to
cross-examine these witnesses and they’ve made
efforts to be here. So I don’t think we should
miss that opportunity even though it may be
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slightly out of order.
MR. MAE: Yes. Your Honour – and while we’re –
we’re on the subject, this is just an advance
warning. We’ve heard today that one of our
witnesses who’s under subpoena was at – perhaps
under the impression she was going to be giving
her evidence this week and she’s not available
next week. But the way this is moving, I don’t
think it’s gonna be a concern because I suspect
that we’re going to be coming back anyway. But
I’ll find out more about that hopefully by
tomorrow...
THE COURT: All right.
MR. MAE: ...and I’ll advise the court.
THE COURT: When – when you say coming back, I
think you mean at another sittings [sic].
MR. MAE: That’s correct, Your Honour. That –
that’s what it’s looking like to me.
THE COURT: All right. Well I will adjourn ‘till
tomorrow at 9:30 and we’ll continue these
discussions.
...
M A T T E R A D J O U R N E D
Certification
AG 0087 (rev. 07-01)
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FORM 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))
Evidence Act
I, Lauren Burch, certify that this document is a true and
accurate transcript of the recording of Danilova v. Nikityuk et
al. in the Superior Court of Justice held at Barrie, Ontario
taken from Recording No.
3811_02_20160524_085911__10_MULLIGG.dcr, which has been
certified in Form 1.
__________________________ ______________________
(Date) L. Burch
(Signature of authorized person)
*This does not apply to the Rulings which have been judicially
edited.
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MAY 25, 2016:
THE COURT: Good morning.
MR. BORNMANN: Good morning Your Honour.
THE COURT: Yes, counsel, where are we at this
morning? Mr. Bornmann?
MR. BORNMANN: Yes, Your Honour, I’ve conferred
with my friends and my understanding is that the
– Mr. and Mrs. Caspers are in town until Monday
but there is some need for them to present their
evidence today. The concern of Nikityuks is that
Ms. Danilova complete her examination in-chief
before we do – take any other steps in the
proceeding Your Honour. So what’s been agreed
between counsel is that my friend will complete
her examination of Ms. Danilova at which point
the affidavits of Mr. and Mrs. Casper would be
put in as they are and that we proceed directly
to cross-examination on those affidavits and it
is our expectation that will be able to wrap that
up today Your Honour.
THE COURT: All right. That’s – if it is to your
agreement, are you ready to proceed...
MS. CHAPMAN: Yes, it is.
THE COURT: ...with the examination in-chief, do
you expect that will take...
MS. CHAPMAN: I’m hoping maybe an hour to so and
then we can move on with the rest of the day.
THE COURT: All right. So if you would have your
client return to the box.
MS. CHAPMAN: Yes, Ms. Danilova.
709.
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SVETLANA DANILOVA: Reminded of Oath
EXAMINATION IN-CHIEF BY MS. CHAPMAN:
Q. Ms. Danilova, you recall we were about to
look at tab 76 of Exhibit 1A?
A. Yes.
Q. Page 4, 5, 6 and it is a letter to yourself
and Pavel Danilov from Crystal Hilton with the County of
Simcoe, Ontario Works dated November 29, 2011. And could you
please read just paragraph 3 from that letter?
A. Please be advised that the Citizenship and
Immigration Canada has been notified that you are not
fulfilling your sponsorship obligations.
Q. And was that a concern for you?
A. Of course.
Q. And did you follow up on this letter, did you
respond to Ontario Works?
A. Yes I personally went to Ontario Works at
some point. It’s the Bayfield office, it’s Ontario Works
office on Bayfield Street, same office in this – the office
was in the same building with social housing and I personally
indicated that we wanted to repay all the money that Nikityuks
received, we were willing to support them. I brought the
sponsorship agreement with me, I made a copy and I indicated
that on many occasions and explained everything about the
cheques that we were trying to send them and that they have a
bank account and they have known about this account for a long
time, since 2005 and we were willing to send the support to
the bank account.
Q. Okay let’s turn to tab 77 now please.
A. Yes.
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Q. And we have a further letter from County of
Simcoe Ontario Works to yourself and Mr. Danilov, dated
December 15, 2011.
A. Yes.
Q. And it appears this letter sets out the
amounts that Valentin and Alla had received to date.
A. To date of December 15, 2011, yes that is how
I understand that letter.
Q. And could you read the fourth line of that
letter, it’s the fourth paragraph sorry. It starts, therefore.
A. Therefore you will be responsible to repay in
the full amount of social assistance issued.
Q. And if we could turn to tab 78, we have a
letter from yourself, Ms. Danilova to Ms. Hilton at the County
of Simcoe, Ontario Works dated December 15, 2011 and was this
letter in response to the letter at tab 77?
A. This appears so for me right now, as I am
looking at this letter I do not remember all steps I took at
that time because it was a lot of steps. If you willing to
hear that I can try to recall but it appears to me that this
letter dated – normally I responded to the same date, if I
receive anything coming from Ontario Works in this case, I
responded the same day. I tried to do so, I always date the
letter the same date I sent out the letter just to account
everything, record everything easier. So yes I sent, I wrote
this letter December 15 and based on my normal habits I sent
this letter out on the same date.
Q. And could you read the second last paragraph
of that letter, it starts with we?
A. We are concerned that they have taken neither
of the support money we trusted, nor my mom’s pension that
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came on December 7th. Also they have recently closed all joint
accounts in other banks. We do not want them to close this
account as well because we do not know their address and this
is the only way for us left to support them. We would really
appreciate if you would write them so, when you have a chance.
The void cheque for this CIBC account is attached so they can
take it and go to the bank even if they forgot everything and
lost the bank cards they still can go to the bank with their
I.D.’s to use this account and this is the account I was
talking about, it’s account in CIBC that was open in 2005,
shared with my mom, when my mom was here as a visitor. I
opened this account, I was the primary account holder, I added
my mom as supplementary account holder because she didn’t have
permanent residence at that point. They – when they came to
Canada we went to the same branch, all together, my mom and
Valentin and we added Valentin at that point and my mom showed
her permanent residency proof and so after they came to Canada
in June 2008 this account became shared between the three of
us on the basis on anyone can sign. We were absolutely equal
on that account.
Q. So let’s have a look at the statements from
that account, those are at tab 63 of Exhibit 1A that you have
in front of you.
A. Yes.
Q. And so this is the account that you say you
provided the void cheque for.
A. That’s right. This is the account I
described.
Q. And if we could also look at tab 54, we have
a CIBC letter addressed to Alla Nikityuk. It appears to
enclose a pin number.
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A. That’s right.
Q. But – sorry, was your evidence was that you
weren’t certain whether they knew those pins?
A. This Exhibit, tab 54, the document just shows
that my mom received the access card with her own pin.
Q. Right.
A. That’s basically what it says.
Q. And tab 55, it appears to be the – a similar
CIBC letter addressed to Valentin Nikityuk.
A. Yes that’s right. That what I was talking
about, after they came to Canada and received – after they
landed in June 2008, all three of us went to the bank to make
official that this account became shared with three of us. And
that what those two tabs are saying.
Q. And so did they have debit cards for these
accounts?
A. Yes, of course.
Q. So if we could go now to tab 79.
A. Yes.
Q. And this appears to be a letter from you,
again to Crystal Hilton, this one is dated December 29th, 2011.
THE COURT: Sorry, what tab are we at now?
MS. CHAPMAN: Yes, 79. Q. And again, Ms. Hilton
is with the Ontario Works Department of the County of Simcoe.
A. I am at Crystal Hilton at Ontario Works, she
was their support worker at the time. Sorry, not support –
case worker on – Crystal Hilton is Ontario Work Case Worker
and I met her at the Ontario Works office on Bayfield Street
as Nikityuks’ case worker.
Q. And could you read paragraph two of your
letter please?
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A. As I stated before we never stopped to
provide money to support.
Q. Sorry Ms. Danilova, the paragraph above that.
A. Recently their lawyer contacted us demanding
my mother’s Russian pension. We have to provide the lawyer as
well with a void cheque indicating the account where the
Russian pension came is joint. On December 20th, 2011 they
withdrew $871.82 from the account and therefore the fact that
they have access to their money including support funds now
confirmed.
Q. And on page 462 there appears to be a copy of
the CIBC account details for that date, December 20th, 2011 and
is that the transaction that you are referring to in your
letter?
A. That’s right.
Q. And next to tab 80 please. And again we have
a letter from yourself, Ms. Danilova to the County of Simcoe
Social Services as well as the Building Management at 1 Blake
Street, and this letter is dated January 6th, 2012. Could you
read for the court, paragraph 2 of your letter please?
A. I have recently discovered that my mother and
her husband have been residing in subsidized housing apartment
in Barrie at 1 Blake Street, Barrie Ontario and based on her
sponsorship agreement I’m asking you to provide me with the
breakdown of their monthly rental payment and how exactly the
monthly due is calculated. As actual guarantor for all of
their needs I need the information for financial planning.
Q. And so what did you intended by writing this
letter to the management at Blake Street?
A. I still wanted to provide them and send them
money on a monthly basis to cover all of their needs and the
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amount they are paying for accommodation would be – would
definitely be very important in their determining of their
monthly support.
Q. And now to tab 82 please.
A. Yes.
Q. And we have a letter from Ms. Danilova to Tim
Robertson, appears to be Ontario Works, and this letter is
dated January 18th, 2012. And do you recall writing to Mr.
Robertson?
A. Yes we received a quote from Tim Robertson, I
believe even both of us was talking over the phone with him.
He indicated – he represented – sorry, he introduced himself
as an Ontario Work representative handling their matter from
their side of Ontario Works and then matter was related to the
Nikityuks’ application to Ontario Works. He was talking to us
trying to find out all of the information related to this
issue and this fax was sent to him after that conversation
with him.
Q. And could you read for the court your first
sentence in paragraph 3 of your letter please.
A. Support funds are being transferred to this
account since their arrival to Canada in 2008 on a regular
basis, never stopped and we do not intend to stop to support
them, in capital letters. Do no intend to stop the support
fund. As their sponsors we managed all their income and
expenses until October 17th, 2011 and tried to explain all
financial related stuff to them uncountable number of times
but they never paid attention, forgot things, lost access and
credit cards etc. We completely understand though that in
their seventies these things can be difficult to do and
remember.
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Q. And then at paragraph – pardon me, tab 83.
A. Yes.
Q. We have a further letter and I say further
because this one is dated January 24th, 2012 from yourself and
Mr. Danilov to Tim Robertson.
A. Yes I believe – I do not recall the exact,
actual events – the exact events if he called again or we
called him. I just – I can see that we sent the letter in
response to some request, like we always did.
Q. Yes so if you can read paragraph 2 of that
letter please.
A. Based on current circumstances we have
determined the amount of monthly support as $1,022.00 to be
trusted to Alla and Valentin’s CIBC account which we have
already indicated but by sending you a void cheque we are
intending to transfer this support on the first day of each
month.
Q. And if we look at page 472 at that same tab,
83, we have the CIBC account details and did you transfer
$1,022.00 in January of 2012?
A. Yes we did.
Q. Was that in one payment or two?
A. It was done, at this time I remember that the
Nikityuks actually what they were doing, at some point, they
used the other draft of the account, the other draft was of
$2,000.00 and this is how they created some mess in the
account so we should have managed this situation then they
withdrew – so we are talking about.
Q. It appears that there is an internet
transfer, January 3rd, 2012 for $430.00, would that have been
transferred by yourself or Mr. Danilov?
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A. It appeared that they withdrew $1,700.00 –
they just withdrew all the funds, everything on the account
and they probably took overdraft.
Q. Ms. Danilova, may I assist you, if you go
back to page 471 and read paragraph 3 of your letter.
A. Oh. This is – for the month of January we
transferred $430.00 on January 3rd, 2012 and the rest of
$592.00 on January 23, 2012. That comes to $1,022.00 in total.
The next transfer due is February 1st, 2012 in the amount of
$1,022.00 accordingly. I’m sorry, yes – I – right now I do not
remember details how we did those transfers. Yes, it appears
so.
Q. And do you recall whether you continued to
make those transfers to Nikityuks?
A. Yes of course.
Q. And finally at tab 84, we have a letter
signed by yourself and Mr. Danilov addressed to Mr. Robertson
at Ontario Works County of Simcoe.
A. Yes.
Q. This letter is dated April 12, 2012 and so
could you please read paragraph 2 of that letter?
A. Based on current circumstances we have
determined the amount of monthly support as $1,022.00 to be
transferred to Alla and Valentin’s CIBC account, which we have
already indicated by sending you a void cheque. We are
intending to transport this support on the first day of each
month. Yes, and the following paragraph explaining how we did
it. Yes, that’s right.
Q. So I just have a few more questions, you can
put the Exhibit aside for now. I want to ask you a few
questions regarding the impact of this claim and this action.
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Are you able to sponsor other family members to come to
Canada?
A. No.
Q. And do you have any interest in sponsoring
other family members?
A. I have my biological father still living in
Russia, yes I do. I have an interest in sponsoring another
family member.
Q. And we’ve heard evidence that this matter has
impacted your family financially, could you talk a little bit
about that?
A. Of course I indicated this fact in my first
letter I sent to YMCA and the letter was dated October 26,
2011. There is a clear paragraph saying that this situation,
this YMCA appeared to be involved puts the family in financial
trouble and it was October 26, 2011 for which letter I didn’t
receive any response. And since that time where we allow, it’s
May 2016, almost five years, it’s just ongoing trouble after
trouble. All our intentions to develop our own business
absolutely destroyed. All the business destroyed because we
are – didn’t have any money and of course any business needs
money to be successfully operating. There are so many aspects
of that including family destroyed absolutely, YMCA did a
great job here, my mother turned, absolutely turned against
the family even emotionally she is – I can see and everything.
Even in relationship to our daughter and this is – visitation
is just horrible. All aspects starting from financial,
emotional, family destroyed, reputation – absolutely ruined in
the community not just in Barrie, not only amongst the Russian
speaking people but the actually Barrie community and the
reputation is unrepairable here. It cannot be repaired in any
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means at this point. Reputation ruined in all – actually in
the many banks here, in social services, Immigration Canada.
Now the social services do not talk to us, we are abusers and
this – like this stamp on my – I don’t know, on me, I consider
this like a stamp on me as a mother abuser. I am a mother
abuser everywhere and this is why actually I am here. I am not
a – it has never happened, never ever happened, anything what
I was accused in.
Q. With regards to the damage you say have been
caused to your relationships, could you tell us a little bit
about friendships or other family members and how those
relationships are today?
A. I can give you for instance, as I said when
parents arrived we took them to, to introduce them to all of
friends we have. We took them to the family – actually this is
a very important family of friends for us, the family of Alex
Trabokov (ph) who found the first job for my husband here and
they also have their mother immigrated from Ukraine living
with them and after my parents left, my mother continued to
communicate to, you know – their mother living with them.
After that I received a call from Rena Radinomova (ph) and she
said that I did horrible things...
MR. MAE: Your Honour, we – I don’t need to say
where we’re going with this. I’m not sure that
this witness is going to be called so.
THE COURT: All right, we don’t need to hear what
someone else told you unless they are going to
be giving evidence in this trial. I think the
issue was your own feeling about damage to your
relationships. Your own thoughts or ideas, not
what somebody else said.
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A. All the things that was said – were said
about me that I took what didn’t belong to me, all of those
things, my reputation is ruined completely.
MS. CHAPMAN: Q. And do you still have a
relationship with those friends?
A. With some didn’t because they didn’t – they
do not talk to me.
Q. Those are my questions for Ms. Danilova,
thank you.
THE COURT: You can step down for now. We will
begin your cross-examination after we’ve dealt
with the next two witnesses. I’m going to brief
adjournment to get another bench book and at
that time you can get the witnesses ready.
MS. CHAPMAN: Yes.
THE COURT: In whichever order you prefer, so I
will return in about five minutes.
RECESS TAKEN
UPON RESUMING
THE COURT: Ms. Chapman are you ready to proceed
with your next witness?
MS. CHAPMAN: Yes, we are. Anastasia Caspers.
ANASTASIA CASPERS: (AFFIRMED)
EXAMINATION IN-CHIEF BY MS. CHAPMAN:
Q. Your Honour, if I’m not mistaken we’re going
to have the witness read her affidavit on to the record.
THE COURT: I don’t think we – I think the policy
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outlined this morning that they would continue
with cross-examination, the affidavits having
been filed.
MS. CHAPMAN: Yes.
THE COURT: I think that was the procedure but if
you want to ask them if the adopt and update the
affidavit, that’s fine.
MS. CHAPMAN: Okay.
THE COURT: If that’s – I think the agreement was
that it was – we would just proceed to cross-
examination.
MR. BORNMANN: That’s correct Your Honour. The
evidence will be in as set out in the affidavit
and proceed directly to the cross-examination.
THE COURT: All right. So.
MR. MAE: However, Your Honour, you did say one
thing which I think is fairly fundamental, not
only should the witness adopt the affidavit but
if there is any update, I think we should hear
that.
THE COURT: All right, so I will let Ms. Chapman
go through that issue with this witness.
MR. MAE: Thank you Your Honour.
MS. CHAPMAN: Yes. Q. For the record, the
affidavit of Anastasia Danilova is Exhibit 6. And to confirm,
Ms. Caspers, Danilova is your maiden name?
A. Danilova is my maiden, yes. Caspers is my
married name.
Q. And do you recall this affidavit?
A. Yes, I wrote this affidavit.
Q. And do you recall swearing this affidavit,
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the date of the affidavit is located on page 4.
A. Yes.
Q. It appears to be sworn in Toronto on May 1,
2013?
A. Yes.
Q. And have you had an opportunity to review the
affidavit?
A. I have reviewed the affidavit.
Q. And is there anything that you would like add
to the evidence you have provided by affidavit?
A. No, there is nothing anything I need to add
or change. The only thing that is just a statement of 5, my
age and where I work, I can update that information, that’s
not current but my statements and that data beyond that, I do
not need to change and I agree to.
Q. Okay.
THE COURT: All right, I don’t think we need an
update on those issues.
MS. CHAPMAN: No I don’t thing so.
THE COURT: Mr. Bornmann do you wish to go first?
MR. BORNMANN: Thank you.
CROSS-EXAMINATION MR. BORNMANN:
Q. Good morning Mrs. Caspers, my name is Eric
Bornmann, I’m the lawyer for Alla Nikityuk and Valentin
Nikityuk.
A. Good morning.
Q. And my understanding is that you reside in
Germany now, correct?
A. Yes I live in Germany.
Q. Ms. Caspers, if I can direct your attention
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to paragraph 10 please.
A. Yes.
Q. The affidavit it reads, during the weekend of
April 20th to 21st, my husband Nicholas Caspers and I made a
regular trip to visit my parents, which on average we take
once a month, correct?
A. Yes.
Q. And you would agree that your first hand
knowledge as to events in the house in Innisfil are limited to
those visits, correct?
A. Of what’s happening in the house, observing
in person, yes of course. I of course can see what happens in
the house when I’m there. I heard about it also, I
occasionally talked to my parents on the phone and at that
point I also communicated with my grandparents over the phone.
Q. Correct. However, in terms of events that you
personally witnessed at the house, those would have been
limited to the occasions in which you visited, correct?
A. Okay, yes.
Q. And on average is it fair to say that your
visits were one to two day durations?
A. It was a regular trip, basically once a month
we would come on Friday night and leave on Sunday, so it was
two nights, three days that we would be there.
Q. If I can take you all the way to paragraph 15
please and I’m just going to read the paragraph here, during
one of my returns to the house, and I just for the court’s
benefit we are not speaking of the weekend in question August
20th to 21st, 2011 – during one of my returns to the house I
found my mother and grandmother having a discussion about
social housing in the kitchen. During this discussion my
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mother was explaining to my grandmother why she and Valentin
do no qualify for social housing, primarily because they are
under the sponsorship agreement and have a high personal
income. Do you believe – so you believe that the Nikityuks had
a high personal income at that time?
A. I believe that the income and the money that
they had access to for their living situation was sufficient
that they would not qualify for the social housing. That there
was no need in social housing.
Q. And did you understand that the Nikityuks had
access to that money?
A. Yes.
Q. Would it come as a surprise to you if I told
you that the Nikityuks did not have control over more than
$600.00 a month?
A. No that’s not a surprise, they had access to
the money, to live. And also they had money that were
receiving from Russia.
Q. But I want to go back to this word, high
personal income, is the $600.00 a month of income they had
access to, was that your understanding of their high personal
income or was it more than that?
A. I think the intent here was not to say that,
however you define an income, the intent was here that their
living situation and the quality of living at the hand, would
not qualify them for social housing.
Q. And what was your source of your information
about the Nikityuks’ income at that time? I take it you were
not checking their bank accounts personally?
A. No I was not checking their bank account. It
was the impression that I had when I visited. I do not know
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exactly how much money they were getting, I do not know
exactly what they were getting but I know how they lived in
the house and I know the clothes they wore, the food they ate,
the access to the car that they had. From there I can imply
that the income was sufficient or that it was high enough not
to qualify for social housing.
Q. I just want to carry on where we left off, I
joined the conversation and also started explaining to my
grandmother the situation with social housing and how they do
not meet the requirements. I suggested that they should have a
discussion about alternative options for living independently
which do no include social housing. Did you know of any other
efforts by the Nikityuks to – I’m just going to use your
words, are you aware of any alternative options for living
independently that were pursued by the Nikityuks at that time?
A. I know that previously my parents and during
all of this time, my parents were very open to getting an
alternative solution, like, getting a condo and later in my
affidavit I state one of those examples. So an alternative
that I would have had in mind, and what I had in mind here
while writing it, is that they could discuss with my parents
if they could live separately in a condo.
Q. And were there any other examples that you
recall of the Nikityuks pursuing alternate options for living
independently. Were your parents supporting – sorry let me
rephrase that, so you indicated that one example of your
parents’ openness to alternate independent living was the
separate condo and we will come back to that in a moment, were
there any other examples, are there any other examples that
you recall?
A. No.
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Q. Having, now just carrying on this idea of
alternative options for living independently, which do not
include social housing, did you know that Alla and Valentin
had on a number of occasions spent the day in consultation
with your parents looking for rental apartments in and around
Barrie and on each one of those occasions, after they would
return home at the end of the evening, your parents would
advise that on reflection, no we cannot proceed with renting
you a separate apartment.
A. I actually do recall that that has happened
but I don’t know the details of those conversations but this
is possible that, yeah, yep.
Q. I just want to continue reading on, moments
later my step-grandfather joined the conversation, he shortly
switched to a high and aggressive tone, stating that my
parents do no let him and Alla live independently,
specifically do not allow to apply for social housing and that
this leads to a lot of fights in the house and makes life
miserable. Would you agree that this was a sign that Mr.
Nikityuk was deeply unhappy with life in the house?
A. I think at that point when the conversations
get to this discussions, because the conversation about social
housing will go on, I think before I witnessed this
conversation, there was tension in the house because the
discussions did not have a resolution but until that day I did
not see or did I not hear any specific complaints about the
living situation in the house.
Q. Okay.
THE COURT: Excuse Mr. Bornmann, is Mr. Caspers
in the courtroom?
MS. CHAPMAN: No I don’t believe so.
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MR. BORNMANN: No.
THE COURT: All right, I just wanted to make
sure. Thank you.
A. I do want to – sorry, I do want to emphasize
here that the tension during that conversation was mainly due
to the topic of conversation and that was the social housing
and the whole argument was – was not about living separately
it was about living in the social housing.
MR. BORNMANN: Q. Yes, but I put to you that the
core of the matter is the Nikityuks’ desire at that time to
live independently, do you agree that that’s probably in fact
the case?
A. I understand they desire to live
independently and I agree that they, by that point maybe
wanted to live independently but I do now know of any specific
complains before that point, why they would want to live
independently.
Q. Okay. And I note here that you write, I kept
emphasizing during this argument and later during the day when
talking to my grandmother that to make the living situation
better, an open discussion about living separately should take
place between them and my parents but not in the context of
social housing. Right?
A. Yes.
Q. So my understanding is that you’re attempting
to play peace maker here and identified that living
independent is an issue that there needed to be an open
discussion about right?
A. Yes and I fully, generally support and
understand if someone – if there are two families living in
the same house and it is up to them to decide whether the
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situation makes sense or not and then they should have an open
discussion about. And again, the problem that I had during
this – well not the problem but the conflict in this context
was really that the conversation was not open, it was not that
all options were put on the table, for example even that you
brought up the possibility of rental apartment, possibility of
buying a condo. In comparison to having an option of living in
social housing, that was not presented. It was only always
about social housings and that was the difficulty, was that
discussion that you could not go beyond it.
Q. Okay. Ms. Caspers, I would like to turn to
the issue of the bruises, you would agree with me that if your
grandmother had sustained bruising in her shoulder, upper arm
area that you may not have seen those bruises unless she chose
to show them to you, correct?
A. I think I would have seen the bruises if they
were there because, I can understand that you may be wearing
different clothing that could conceal the bruises but I’m
pretty sure on that day I was close enough to them and it was
actually hot outside so everybody was very minimal clothing
that would see the bruises if it would be up to the point of a
tank top because I pretty sure on that day my grandmother was
wearing a tank top.
Q. And, okay, you would agree with me however
that bruises don’t necessarily show up right away when you
sustain a bruise.
A. Sure, I don’t have a medical expertise but.
Q. Did you – let me draw your attention to
paragraph 18 on the second page and I will just read it, the
social housing discussion with my grandmother and step-
grandfather on Sunday, August 21st was the first time I heard
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my grandmother or step-grandfather talking about living
independently and the emphasis was on the social housing
option. So this is August 21st. However, my parents had been
considering buying a separate condo for Alla and Valentin to
live in before that. For example, on July 25th, 2009 I visited
my parent’s model condo as one of the potential options for
buying. It’s true though that when you first went to see that
condo it was going to be for you originally wasn’t it?
A. No, that’s not true at all. That was never
for me.
Q. So can you help – help me understand what’s
going on here because in August you’re saying you’re hearing
for the first time about the parents wanting to live
independently but a number of months ago, over two years ago,
your parents were looking at a condo for the Nikityuks.
A. Okay, the situation was that this was the
first time I heard this as being openly – as a discussion,
that there was some sort of conflict and they expressed
actively the desire to live independently. However, as a
common-sense, like I mentioned, family can decide to live
independently and it was – it was an option and one of those
options it would be to get another condo, but they never – the
condo was never for me. It was only for the purpose of
potential living them independently. Like I said, it’s always
an option in a family to live independently. It doesn’t have
anything to do whether anybody expresses a desire or not. In
the first part I stated that was the first time I heard them
actively say and also resulting in conflicting discussion,
that they want to live independently.
Q. Your grandmother is going to testify that
this condo was going to be – was being purchased for you, that
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your parents wanted you to return to Barrie and live in the
Barrie area and when you said no, she begged your parents –
she asked your parents to let her an Valentin take the
condominium and then your parents said no.
A. Okay so, again, I state this for absolutely
for any record, all records, I never intended to live in
Barrie, first of all. Second of all, this condo was never
planned to be purchased for me, I never had any desire to live
in Barrie, I never lived in Barrie, never wanted to live in
Barrie. Never had any claims on that condo, I saw that condo,
my parents showed me the condo and it was always a condo where
my grandparents would live in. I would never have lived in
that condo, I never planned to.
Q. Well you would agree that it is a little odd
if the Nikityuks are interested in living independently it
would be a little odd to buy a condominium that is two years
away from completion, wouldn’t you agree?
A. This is exactly why it was considered as an
option because when that condo would be built that option
would be there, to live independently. If anybody wanted to
live in that condo. I never wanted to live in that condo. So
it was the obvious choice that my grandparents could live in
that condo when it was built, why not.
Q. And it is a little odd that for an elderly
couple your parents would have selected a two floor
condominium?
A. The house right now also has two floors and
there were never any problems with that.
Q. And your grandmother is going to testify
that, while what you just said a moment ago may in fact be
correct, that you had no interest in living Barrie, your
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parents were certainly very interested in having you live in
Barrie, isn’t that right?
A. No. I don’t understand why my parents would
be interested in me living in Barrie. Other than some sort of
parental connection but there was never any substance, it
never made any sense for me to live in Barrie. In my
specialization there are no jobs in Barrie for me to live at
and I’m pretty sure my parents would understand that. From a
career perspective, from a professional perspective and from
an educational perspective it would never make any sense for
me to live in Barrie. I would not think that my parents would
have any intentions for me to live there.
Q. I think – one final question, I see that the
affidavit was sworn on May, 2013 which was just shy of two
years after the events in question happened, correct?
A. Yes.
Q. And, so the source of your information, you
indicated that you parents were considering buying a separate
condo for Alla and Valentin to live in, your – who – what was
the source of your information that you write, however, my
parents have been considering a separate condo for Alla and
Valentin before that, how do you know that?
A. Sorry for which date?
Q. Sorry, take you back to paragraph 18.
A. So that’s back on 18, so yeah.
Q. August 21...
A. My parents would be the source of that
information.
Q. Okay and the Nikityuks did not attend with
you on July 25th did they, when you went to the condo centre?
A. No.
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Q. Okay. Those are my questions Your Honour.
THE COURT: Thank you Mr. Mae do you have any
questions?
MR. MAE: I do Your Honour, yes.
CROSS-EXAMINATION MR. MAE:
Q. Mrs. Caspers...
THE COURT: Perhaps you should indicate who your
clients are.
MR. MAE: Oh certainly Your Honour. Q. I am for
the YMCA and Yana Skybin.
A. Okay.
Q. You would agree with me that family conflicts
are never pleasant?
A. Sorry?
Q. You would agree with me that family conflicts
are never pleasant?
A. Yes I would agree with you.
Q. And you’re in a pretty awkward position,
aren’t you, in between the middle of your parents and your
grandparents.
A. Yes.
Q. When did you arrive in Canada to give
evidence, did you arrive yesterday?
A. Yes we arrived yesterday.
Q. And then who picked you up at the air port?
A. Actually we rented a car, so we drove
ourselves.
Q. And so where are you staying?
A. We’re staying at my parents.
Q. And have your parents told you about this
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court case?
A. Yes of course.
Q. And have they told you about what has been
happening in the court case up until to date?
A. At a very high level that my dad had his time
last week and my mom had the time yesterday and this week.
Q. And did they tell you about the cross-
examination process, what evidence was provided to the court?
A. No they just told us that there was a cross-
examination.
Q. And you’re aware, of course, in these
proceedings that your parents are suing your grandmother and
grandfather for a lot of money.
A. Yeah, okay, yeah.
Q. Well you say okay as if it’s a question.
A. Yes.
Q. So you are aware that your parents are suing
your grandparents.
A. Yes.
Q. Tell me about the relationship with your
grandmother before these events, were you close?
A. My relationship.
Q. Yes.
A. Before which events, be specific.
Q. Before your grandparents left the house, you
were close with them?
A. I think it was a good relationship, I
wouldn’t say I was extremely close. Mostly because we lived
apart through most of my adult sort of say, years. But it was
a good relationship.
Q. And, if I’m not mistaken, before you came to
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Canada you lived with your grandmother and Valentin for some
period of time.
A. Yes.
Q. When was the last time you actually spoke
with your grandmother and Valentin?
A. As of today.
Q. Today you spoke with them?
A. No, as of today?
Q. As of today, yes.
A. It was more than a year ago because the last
time I spoke I was still in Canada. So I have not spoken to
them since I moved to Germany.
Q. So when did you move to Germany, just to give
us some idea.
A. Okay I moved to Germany in December, last
year, so December 2014.
Q. So you’ve spoken with them since they left
the house.
A. Yes.
Q. In your view, is your grandmother a dishonest
person?
A. Not generally, however, since this whole
thing started, I – I cannot say that for sure because we are
here in this case and I believe what my parents are saying is
true and by definition, because there are a lot of statements
made against what my parents are saying then I must assume
this is not true, and I believe that’s not true.
Q. And so what you’re saying then basically is
you’re choosing to believe your parents rather than your
grandmother.
A. It’s not just a choice that is not grounded
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upon anything, it’s a choice that is grounded of my own
observation and my own experiences. I believe my parents and I
trust my parents but also because I think I have enough
understanding and recollection of the events to be pretty sure
that my parents say it truth.
Q. And it would be fair to say that you love
your parents absolutely.
A. I love my parents; I don’t know what
absolutely means.
Q. You would do anything for them.
A. It’s a very generic statement and I wouldn’t
necessarily agree to that.
Q. Well you’ve flown half way around the world
to give evidence in this case.
A. Yes because it is important and I wanted to
make sure that my opinion is well represented and I can
express everything I wrote in the affidavit and this is.
Q. So your opinion. What about Valentin, were
you close to Valentin, your grandfather – well he’s your step-
grandfather to be precise.
A. I was probably less close to him as to my
grandmother but it was again, before this whole thing started,
I think a good relationship.
Q. Now paragraph 6 of your affidavit, you speak
about the – your time at university and the finance
arrangements, were you parents ever supporting you through
university, did they ever pay any tuition or give you
allowance?
A. My parents only paid for the tuition in the
first year but after the first year – that was basically the
first year in Canada I lived with them and they paid the first
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year of tuition. After the first year in university I did not
have any support from my parents. I could support myself.
Q. So when you say the first year in Canada,
that would have been 2004 then?
A. Yes basically the school year because it is
in the context of university tuition, the school year of
starting from 2003 September and then the school year after
that. And so that tuition was paid by my parents. After that
though I was fully supported through OSAP and like I state
here, other sources of income but there was no dependency on
my parents.
Q. So just to put things in context, so when you
– when you came to Canada in 2003/2004 you would have been –
that was your first year of university.
A. That was the first year of Canadian
university. I can mention when I lived with my grandparents in
Russia, I actually completed first year of university in
Russia.
Q. So what age would you have been?
A. What, sorry?
Q. What age would you have been?
A. So I was 17 when I moved to Canada.
Q. And when you were living with your
grandparents in Russia was that at the time when your parents
were also living in the same apartment or were they living in
Latvia at that time?
A. No, no my parents were living in Latvia, I
was living with my grandparents in their apartment in Russia.
Q. And generally speaking, how would you have
described the relationship between your father and Valentin
while they were in Russia, was it a close relationship or?
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A. I’m not sure what you define as close
relationship, it wasn’t like they were calling each other
every day. I think it was a normal/average relationship of
what is – the family tie, a husband of a mother in-law. It was
not particularly close; they were not best friends but I’m not
aware of anything else.
Q. So they would have their ups and downs, they
would have their disputes, their disagreements.
A. Like in any family, I guess that’s a fair
statement. But family would come together for holiday’s,
birthday’s, you would call for birthday, like I don’t know –
like a very standard amount of interaction. Nobody was
avoiding anybody but it wasn’t best friendship.
Q. So, exactly, so – so basically the
relationship can be cordial and then there could be dispute,
it’s just the natural relationships between people. Would you
agree with that?
A. Yes. Of course relationships can be different
and that relationship was – I would call it normal in the
context of family ties of the fact again, that we lived in
different countries, there were phone calls, there were visits
but there wasn’t anything to stand out.
Q. Your affidavit, you indicated earlier on that
you wrote it, what do you mean by that, did you physically
write out this affidavit?
A. Okay I typed it.
Q. You typed it.
A. I typed it, yes.
Q. So this was your wording.
A. This is completely my wording, I typed the
whole thing from the beginning to the end.
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Q. And there fore you typed your husband’s
affidavit as well.
A. No my husband typed his own.
Q. He typed his own.
A. Yes.
Q. Okay. Why was the affidavit sworn in 2013?
Why was it prepared in 2013?
A. The reason the affidavit was prepared is that
my – my father actually asked me to prepare in response to the
letter that is the appendix to that affidavit and the – that
was brought up to my shortly before this was signed.
Q. Okay. So let’s look at paragraph 1 of your
affidavit. You swore, I’m making this affidavit in support of
the legal action of my parents against the YMCA and Yana
Skybin.
A. Okay.
Q. No mention of your grandparents in that first
paragraph.
A. No.
Q. Why not?
A. I think because it was presented to me as a
response to the letter from Yana and in that context it
appeared to me that it was just against the YMCA and Yana, it
was just the context.
Q. But so you were aware at that time that your
parents were suing your grandparents?
A. I don’t remember; I may not be aware at that
time.
Q. Before your grandparents left the house in
October 2011, did you have any discussions with them about
financial matters?
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A. No, not well – not concrete enough that I
could recall. Like it wasn’t, no.
Q. So just to ask the question in a different
way, did you have any discussions with your grandparents
concerning the financial arrangements between them and your
parents?
A. Okay. I was not at that point very into
details of where the money came from, what accounts and what
kind of access they had, so I was not in those discussions at
that level of detail.
Q. And were you aware that at some point in 2008
that all of your grandparent’s money that they had sent from
Russia had been lost in the stock market?
A. I think it’s not a fair statement of...
Q. Well, well please answer the question, it’s
not a question of whether it is fair, counsel can object. Were
you aware that they money your grandparents sent over was lost
in the stock market, yes or no?
A. I don’t think that’s a yes or no question,
I’m sorry.
Q. Well it is a yes or no question with respect.
Were you aware in 2008...
A. I’m aware that the money was lost in the
stock money. I am aware that the grandparents brought money to
Canada but there is – which exact money was lost in the stock
market, I don’t think anybody can say but it is true that
there was a recession in 2008. My parent’s business was
heavily tied to the stock market, of course, and therefore
they had losses in their business with respect to the money
that was invested in that business and some of the money that
was invested in the business was the money that my
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grandparents brought. But also that money, it’s the same money
that is used for the business, for the stock market, buying
food, for paying the house etcetera, so I cannot answer your
question yes or not, this is where I’m coming from.
Q. So when did you become aware that all the
money was lost.
A. Again I cannot – I’m sorry I cannot answer
that question because I don’t think that is a...
Q. Forget about the definition, let’s just focus
on the words, the money. When did you become aware that the
money was lost?
A. I think it’s a gradual process as the
recession hit. So I don’t have an awareness of exact date when
the money was lost but I know that over the course of 2008 and
2009 when the general financial situation and the stock market
was low, I know that the money was lost during that period of
time but I do not have a knowledge of the date, exact amount
of money, which money it was and I don’t think anybody could
actually say that.
Q. Correct me if I’m wrong, you’re a financial
analyst, you work for BMO?
A. I worked for BMO when I lived in Canada.
Q. Yes.
A. And I was in credit risk management, yes.
Q. So would it come as a surprise to you that
the money, let’s just use the words the money, was all lost
over a period of days?
A. I think it’s possible that most of the money
could be lost over the period of days but again, I don’t know
the date.
Q. Okay.
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A. And still I don’t think it’s all money lost
at the same time.
Q. Well let’s just – let’s just – you don’t
think it was all lost at the same time.
A. I don’t think so.
Q. Okay.
A. But again, I don’t know the date or the
amount of money.
Q. Did you have any discussions with your
grandparents at any time before 2011 about the money being
lost?
A. With my grandparents.
Q. Yes.
A. I don’t think so.
Q. Okay.
A. I don’t remember.
Q. Okay. Presumably you would have been aware
that the loss of the money caused financial hardship to your
parents, were you aware of that?
A. I don’t know again, what you define as
financial hardship because it can be a very broad term.
Q. Well, okay.
A. I do not think my parents lived in poverty
but they could not run, for example, the business and some of
the money that was put in the business was lost.
Q. Well let’s put it into some context.
A. Okay.
Q. There was about $200,000.00 to $250,000.00
that was lost. I – that would have been an extreme lost based
upon your family’s finances.
A. Okay. That is a significant amount of money
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but if it is invested in business and house, house is there,
business is there but it is not potentially as active as it
could have been if this money wouldn’t have been lost, of
course. But it’s not like they lived in poverty or had nothing
to buy food on. I think that’s the hardship question.
Q. Well maybe then we’re getting stuck in terms
as opposed to concepts. $250,000.00 was a lot of money to your
family correct?
A. Yes.
Q. And the loss of $250,000.00 would be
significant?
A. Yes.
Q. Okay. And that’s the reason why they all
ended up living under one roof at Rankin Way, do you recall
that?
A. Okay I don’t know if it was the reason, I
think it was a decision at a point that financially it would
make sense. Of course there was a high financial reason to
live under one roof.
Q. And when your parents moved into Rankin Way,
I understand from the two affidavits that you first went there
in 2009 with your husband to introduce your husband to them,
so my question is, did you go to the house before that –
before September 2009?
A. I made visits to the house to look at the
house.
Q. I mean to visit family.
A. Yes to visit family, I went there yes. It is
the same concept as approximately once a month or so, I made
those trips rather regularly.
Q. So it was basically weekends.
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A. Yeah basically weekends, on average once a
month.
Q. Okay and you were still in school at that
time.
A. Yeah.
Q. Or university sorry.
A. University, yes.
Q. And while you were there, were you doing any
of your – your own studies, any – were you studying while you
were at the house at the weekend or was it all relaxation?
A. Probably both and depending on the weekend.
Q. And you – you remember the basement, the
office in the basement?
A. Yeah.
Q. That was all set up by your father, the
network, the computer network.
A. Yes it was, yes.
Q. And your father described himself as being
referred to as a computer guy.
A. Yeah he did have a lot of computers so to
say, they were set up in the basement as an office and to
support the business.
Q. And did you work when you were doing your
studies, were you working in the basement or in the office or
did you work...
A. Actually, well most often – there is a
bedroom in the basement, so the bedroom would be in the
basement. But the studies, if I would do the studies I would
do them either upstairs or in the – on the first floor, on the
ground floor.
Q. And you said your father had a lot of
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computers, what was it like a desk top, laptop in that
basement?
A. Both.
Q. Both.
A. More than one.
Q. Yeah, printer?
A. Yes.
Q. Scanner?
A. Yes.
Q. And when you were at the house did you see or
hear any arguments, any of the arguments – I believe you said
you didn’t in your evidence in-chief I just want to make sure
I understood it correctly. So there were no arguments or
disputes in the family while you were there?
A. Nothing that is major or beyond family
discussions but no there was, again, I’m sorry but it again
comes down to how you define an argument, nothing major that
would go outside of normal family life.
Q. And at paragraph 9 of your affidavit you
reference that you’d heard of Yana Skybin from your
grandmother and step-grandfather, “when they lived with my
parents the spoke of her as their friend.” So, that was
basically during normal family conversations.
A. Yeah it would be in the context of, at that
time they were taking English classes, they were hanging out
with this family, it was general or something just casual.
Q. And they never said anything about Yana
Skybin that made you concerned?
A. Sorry?
Q. Did they say anything about their
relationship with Yana that made you concerned?
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A. To be honest I never had real discussions
with them about Yana, I heard her name mentioned as, like as a
friend as I say here.
Q. Okay. Now I just want to take you to the
weekend, incidentally in paragraph 10 of your affidavit you
refer to the weekend of April 20th, but I would suggest to you
that that’s obviously a mistake because at paragraph 11 you’re
referring to August, so we’ll just put that down as a typo.
A. No I think here it actually means that that
was the weekend where my dad showed me the affidavit – no not
the affidavit, but the letter of Yana and shortly after that
then I wrote the affidavit in response to that and that was
signed then.
Q. No I think that is a mistake in your
affidavit, if you look at paragraph 10, you say “during the
weekend of April 20th, 21st, my husband and I had made regular
trips”.
A. Yeah and this is when my father showed me the
letter from Yana, as of December right, that’s the letter that
then I’m then writing my affidavit.
Q. Oh well there is no year.
A. There is no year and that could be
misleading.
Q. Yes.
A. But I – I believe or at least I think that –
I believe, the intent of this paragraph is to say that that
was when my dad showed me the letter of Yana.
Q. Right, okay.
A. That’s the appendix.
Q. Okay so the weekend you’re referring to when
you visited was indeed the August weekend.
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A. Okay.
Q. Okay. And you say at paragraph 14 of your
affidavit that “on Saturday my grandmother and step-father
left for a birthday celebration with their friends and I did
not have a lot of interaction with them on that day.” So why
was that – were they in their room or?
A. Actually so we – this was the whole weekend,
we were actually mostly outside building a gazebo and they
were leaving, I actually think it’s Yana’s birthday, that they
were going to that night and they left in the afternoon. I’m
actually not sure where they were in the house because I was
outside most of the day.
Q. And at paragraph 15 you refer to the
discussion that you walked in on between your grandmother and
your mother. When you joined that discussion, was it a heated
discussion, was it already an argument?
A. When I – basically I was again outside most
of the time and then I walked in, I went back to the house,
the discussion was – it wasn’t like people were just saying,
let me rephrase it, it wasn’t – it was an argument because my
mom was trying to present the case about why social housing is
not an option and my grandmother was pushing for the, no
social housing is something that we want to go for.
Q. So it was already an argument.
A. It was already an argument.
Q. Okay and you joined in as a peace maker I
believe.
A. I think that’s fair to say, yes.
Q. And you seem to have some knowledge at that
time about the social housing system, how did you gain that
knowledge?
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A. Well I – okay, my knowledge was more like
common sense knowledge and that – it wasn’t that I
investigated it, actually during the conversation I also
learned from my mother when she was making her arguments but
also just the whole concept of social housing and the
sponsorship, I knew at that point that under the sponsorship
you shouldn’t be asking for social assistance. You are
dependent on the sponsor and if the sponsor can provide for
you the you don’t need to search for social housing and in my
understanding, you need to be in financial need to go for
social housing.
Q. So basically it was a little bit of common
knowledge and what your mother was saying.
A. Yes, okay.
Q. Did your grandmother, during that discussion,
express why she wanted to live independently?
A. To be financial independent and to be
independent and not to live with – that’s the thing about that
discussion, it was not very structured. It was really about,
we want to live in the social housing by all means possible
and we will get that and this is why it was so difficult
discussion. And I say in the end that the outcome of the
discussion is that my grandparents were still wanting to live
in social housing and they didn’t want to compare any other
options. It was really about living in social housing.
Q. They – but they – the subject of why did not
come up, is that what you’re saying?
A. It was not discussed at that depth other
than, well, they wanted to be independent. The statement was
them was, it always about independence and I actually believe
that the reason they might not have wanted to live in the
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condo that was still paid from my parents is because it is
also not independent. In my understanding where my
grandparents were coming from about the social housing is that
this is a solution that really allows them to get their own
source of money and be completely independent from my parents.
But it wasn’t why...
Q. But why was never discussed with you in the
room.
A. Why was not discussed.
Q. Okay. And you continued to say in your
affidavit that Valentin joined moments later and he shortly
switched the a high and aggressive tone. What do you mean by
that?
A. It was very confrontational. It was basically
right up front, I think he came from upstairs, it was ‘are we
not allowed to – we are not allowed to do what we want and we
need to live – we want to live in social housing and your
parents don’t let us live in social housing.’ And it was right
away, like, it wasn’t, oh what are you guys talking here
about, it was I want to live in social housing and I’m not
allowed to.
Q. So Valentin said, your parents won’t allow us
to do what we want, that’s what I understood you just said.
A. My parents would not allow them to live in
social housing.
Q. But I think you actually said, my parents
won’t allow them to do what they want.
A. Live in social housing.
Q. And so this high and aggressive tone, is it
unusual for Valentin to get to that stage, have you seen him
at that level before?
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A. Yeah that was not the first time that I would
see an argument and that my grandfather would be in.
Q. And who – that wasn’t the first time.
A. That wasn’t the first.
Q. Okay so, what about the other arguments you
would have seen then, who would they have been with?
A. So they – it would be with my parents because
that’s the only people I saw my grandparents interact with,
okay.
Q. And in terms of high and aggressive tone,
because again these are your words, I’m trying to understand,
so was he screaming, yelling?
A. At that – in this discussion, yes.
Q. Yes. Was he gesturing, were his arms flailing
around?
A. Yes.
Q. And how was your mother reacting to that, did
she take it up a notch, was she shouting back?
A. Of course at that point the discussion became
a little bit more at higher tones. And it was – it was
difficult to resolve it, like I mentioned many times, it was
not a very structured discussion. It was very – two sides
trying to present – express their points and there was no
other way but to go to higher tones.
Q. So as I understand that and I’m not trying to
put words into your mouth but, conversation, somebody starts
shouting, somebody shouts in response and it escalates, is
that a fair assessment? Everybody was trying to make their
point loud – loudly?
A. At the end that conversation was – okay, not
in the end but there were points in that conversation that
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everybody was trying to make their point loud.
Q. And you say in your affidavit in reference to
Valentin at paragraph 15, I will read out the whole sentence
if I may, to make it easier, “moments later my step-
grandfather joined the conversation. He shortly switched to a
high and aggressive tone stating that my parents do not let
him and Alla live separately. Specifically, do not allow to
apply for social housing and this leads to a lot of fights in
the house and makes his life miserable.” So he actually said
his life was miserable, is that correct? Am I reading your
affidavit correctly?
A. So I’m not quoting here and I also cannot
recall exact words but the not being allowed to live in social
housing and all the discussions that were – my understanding
of that, that because there was so many discussions going
about the social housing and living independently that, yeah,
this was, you know, getting more and more often that they were
talking about the social housing. I’m sure that that was not
the first time that my grandparents and my parents talked
about the social housing but I was not witness to those other
discussions.
Q. Okay. But before you here, makes his life
miserable, I know it is not in quotations but when you swore
this Affidavit...
A. Yeah.
Q. ...you’re understanding would be that...
A. I was understanding that because there was so
many discussions about the social housing that it was not easy
to live in the same house because you argue all the time,
fundamentally disagree about whether you should live in social
housing or not, is from my experience, because I was part of
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one of those conversations, this was, like I said many times,
it was not a very structured discussion and I can totally
understand how it could be difficult because you live always
discussing the same point all and over again and you
fundamentally disagree.
Q. But going back to the word miserable, do you
recall whether the word miserable was used?
A. First of all it would be in Russian, so it’s
difficult.
Q. Oh.
A. I do not know what I – like I said, I do not
remember what exact words were used. The discussion was in
Russian.
Q. Okay.
A. The translation is my best interpretation to
the English.
Q. Fair enough, I will accept that. And we’ve
already discussed that you were trying to calm things down,
but before we get there, was there any discussion about any
physical assaults or any...
A. At that point, no.
Q. No, okay. Was it discussed at any other
point?
A. After this whole case started, yes.
Q. Oh after the case started but not at that
time.
A. Not at this time.
Q. So you tried to calm things down and – so how
did the – the discussion end, because you have this heated
argument as I understand it and your Affidavit says at
paragraph 15, I kept emphasizing during the argument and later
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during the day when talking to my Grandmother, to make the
living situation better. An open discussion about living
separately should take place between them and my parents but
not in the context of social housing. So...
INTERPRETTER: I’m sorry Your Honour. Can you
read that again?
MR. BORNMANN: Can I read it again, oh certainly.
THE COURT: For the interpreter, yes.
MR. BORNMANN: Q. Moments later my grandparents –
oh sorry, wrong line. My grandmother – I’ve lost my line, I do
apologize. Got it – I kept emphasizing during this argument
and later during the day when talking to my grandmother that
to make the living situation better an open discussion about
living separately should take place between them and my
parents but not in the context of social housing. So going
back to the argument, it was in the kitchen?
A. Yes it was in the kitchen.
Q. And the kitchen window opens out into the
backyard, the garden?
A. Yeah but it would be closed because of the
air conditioning and the heat outside.
Q. So how did the – the actual interaction, that
argument end at that point?
A. So it was – we were basically throughout the
whole discussion sitting at the table in the kitchen. I don’t
know who sat at which spot but it was my grandmother, my
mother and me and my grandfather was actually standing because
he joined later and he was just standing. The end of this was
basically, it was still about the social housing, I did try –
like you see here, I was trying to make the point that this
discussion could have been better or should be continued in a
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more global context of just living independently because at
that point, yes of course it was clear that they – my
grandparents wanted to live independently and they were
exploring social housing at the option and I don’t remember
exactly how it ended, it could be that everybody just left, I
probably went back outside because actually I was just briefly
going into the house and I got stuck in the kitchen in this
discussion and I think I went back outside. I don’t know what
happened – well I think like, no, I’m pretty sure my
grandparents just went upstairs and my maybe went outside with
us.
Q. But then, as I read your Affidavit you then
spoke to your grandmother later in the day as well.
A. Yes.
Q. And did she reveal anything to you at that
time about life at Rankin Way?
A. To be honest I don’t remember that
conversation in details, it could be that she gave me more
details and again, at that time it was pretty clear that they
wanted to live separate but there was nothing that caught my
attention that would really justify that urgently they need to
live separately, it was.
Q. So would it be fair to say that during the
discussions with your grandmother or while you were at the
kitchen table that you were reassuring your grandparents to
give things a try or that’s how they would have understood it,
that you were trying to tell them that things would get
better.
A. So I think it was still in the context of,
you should continue this discussion about living separately,
until then you live together because well, there is not a lot
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of, like I don’t know, you can live in hotel or you continue
living together until you can come up with some alternative
solution and the intent that I had to end that conversation
and to kind of hope that they would continue is really just
have an open discussion with my parents about all options. But
I did not get the feeling that that was to be all
misunderstood because that was always – even if I would have
said that it would still be coming back to the social housing
so I did not feel like whatever I was trying to say in that
conversation was really, like, yeah understood or followed
through.
Q. You gave evidence earlier on with respect to
the condo in Barrie, what was your understanding of the reason
why the purchase of the aim of purchasing was withdrawn.
A. So I know that my parents had gone actually
quite far with the condo, I actually believe that they put,
even the like initial deposit for it so they were, would make
me believe that they were quite determine to get that condo. I
do think it went through because I think around that time my
grandparents were actually quite sick and they needed some
support in the house and I don’t know if that was the reason
they didn’t want to move out because my mom needed to pay a
lot of attention and take care of them, take them to the
doctors, make doctor appointments and things like that. And it
was always one of the reasons why living independently maybe
was not the best option, at least in the context of talking to
my parents, that my grandparents actually needed a lot of
support.
Q. And when you say that, according to your
parents, your grandparents needed a lot of support, what was
the context of that, in what manner, what support?
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A. In the medical context, going to the doctors,
again helping out, probably cooking and shopping and preparing
food.
Q. And did you have any discussions with your
parents prior to your grandparents leaving about your
grandparent’s capabilities, about their abilities to deal with
things?
A. I think the language was always a question, I
think to this day do not speak fluent English, so there was
occasional understanding at least that its – it could be
difficult if they don’t speak the language to live completely
independently. So that was one.
Q. Did your parents say anything negative about
your grandparent’s abilities to look after themselves? I will
ask it in another way, I will ask it in a fair way.
A. Sorry.
Q. Did they express any concerns about your
grandparent’s state of mental health, about their competency?
A. The only thing that I can think of, but this
is after all the court, all this case started and it was more
like really understanding the substance of the case,
understanding the impacts of social housing, it was – it was a
lot of like, I had conversations with my parents on whether
they understand what social housing actually is but it was
after this case started. Do they understand that actually my
parents are still paying for the social – like, and things
like that. It was really about understanding.
Q. So what about your grandparent’s ability to
do things around the house such as use the TV or the
appliances, any discussions about that?
A. I think it’s – well discussions, it could be
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that switching from English channels or like to get some
Russian program like, funny remote discussions that happened
but it wasn’t like, it was just the household discussions of
why doesn’t the remote work or something like that, it wasn’t
anything major.
Q. But, so there were not discussions there
about your grandparent’s inability to use cell phones, the
washer/dryer, the coffee maker?
A. There could have been some humorous
discussions of when things don’t work, nothing that I can
recall specifically but I just can imagine that, it’s just a
household situation of this doesn’t work, have you tried this.
Q. Just moving on to paragraph 19 of your
Affidavit, the first part of the Affidavit you refer to your
grandmother and step-grandfather telling you stories about
their English classes at the YMCA, their friends and trips to
festivals, et cetera. The second part of the Affidavit, the
last sentence says, “they had all they needed, including full
usage of a second car, their own credit cards, bank accounts,
access to stores and cultural events.” Am I understanding that
that last sentence, the source of that information was from
your parents or from your grandparents?
A. It was from – it was from both. Also from me
being there, the times as we discussed, quite regular on
weekends.
Q. But you had no specific details of any of
those at the time?
A. There were a couple stories that my
grandparents shared with me, if they would have taken these
boat tours and they...
Q. Sorry, not the boat tours, about the
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finances.
A. About the finances, no I did not have details
on that.
Q. I’m going to suggest to you that on August
20, that weekend, you were aware of the physical altercation
that had occurred between your mother and your grandmother,
what do you have to say about that?
A. No, I was not aware of – no.
Q. I’m going to suggest to you that you’re in an
awkward position and you’re embarrassed because if you reveal
that you were aware of that discussion you would be angering
your mother who sat in the court.
A. No that has nothing to do with that,
absolutely nothing. I am standing here because I truly believe
there was no abuse, there is not justification for any of this
and this is why I made this trip from Germany because none of
this happened. There is no abuse on that day and I’m pretty we
would be aware of this.
Q. Well you say all that, you’re pretty sure but
you’re a scientist by background, you can’t say positively can
you because you weren’t there.
A. I can say positively that nobody showed me
the bruises from the day if I read Yana’s statement and I’m
sure that if there would be bruises on the arms I would have
seen them.
Q. But you can’t say that there was not
altercation, can you, because you weren’t there when it
happened. You can’t say with absolute certainty because you
weren’t there.
A. Yeah but I truly believe there was no
altercation, not with my parents and my grandparents and this
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situation, I do not think there was a physical interaction.
Q. So you’re suggesting that your grandmother
has made all of this up?
A. Yes.
Q. And your...
A. I think that was made up, the whole bruise
and the whole physical abuse was made up.
Q. You think?
A. Yes.
Q. Okay no further questions Your Honour.
THE COURT: Ms. Chapman any re-examination?
MS. CHAPMAN: No I do not, thank you.
THE COURT: Ms. Caspers you’re excused, I just
remind you to not discuss your evidence with any
witnesses that follow or any participants in the
case, do you understand?
A. Yes, thank you. Can I stay in the courtroom?
THE COURT: I don’t see any reason why not;
you’ve finished your testimony. So we will
adjourn for a morning break and come back in
about 15 minutes.
RECESS TAKEN
UPON RESUMING
THE COURT: Ms. Chapman?
MS. CHAPMAN: Yes, our next witness is Jan Niklas
Caspers.
JAN NIKLAS CASPERS: Sworn
THE COURT: Good morning have a seat if you would
like.
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JAN CASPERS: Good morning.
EXAMINATION IN-CHIEF BY MS. CHAPMAN:
Q. If we could provide the witness with Exhibit
7, thank you. Have you had an opportunity to review that
document Mr. Caspers?
A. Yes I did.
Q. And do you recall swearing that document on
or about May 1, 2013?
A. I do.
Q. Is there anything stated in that Affidavit
that you would like to correct?
A. No.
Q. Okay those are my questions.
THE COURT: Thank you, Mr. Bornmann, do you have
some questions?
MR. BORNMANN: Yes Your Honour.
CROSS-EXAMINATION BY MR. BORNMANN:
Q. Hello Mr. Casper, my name is Eric Bornmann,
I’m the lawyer for Alla and Valentin Nikityuk. You indicate in
your Affidavit that you do not speak Russian, right?
A. That’s correct, I’m learning a little bit
since then but at the time I didn’t speak a single word of
Russian.
Q. Or understand Russian.
A. Yes that’s correct.
Q. So any conversations that you had with Alla
Nikityuk or Valentin Nikityuk would have been have been
between, you would have to use Svetlana, Anastasia or Pavel as
an interpreter, is that right?
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A. That’s correct. There have been occasion when
I was alone with them but we were not really able to
communicate verbally.
Q. And I understand that in the period of time
that you were visiting Innisfil, September – September 2009
until August 2011, when the events in question occurred, you
were visiting about once a month, is that right?
A. That’s about right, yes, about once a month.
Q. And...
A. Yes about once a month.
Q. And you would typically arrive on a Friday
and leave on a Sunday?
A. We would arrive sometimes on Friday,
sometimes on Saturday, typically leave on the Sunday or on the
weekend, yes.
Q. And you would agree that your first hand
knowledge of events in the house in Innisfil would be limited
to those visits, correct?
A. That’s correct, yes. I mean, my wife talked
to Svetlana and Pavel regularly on the phone, sometimes I
talked to them so I had some knowledge from that but mainly my
information was during the visits, yes.
Q. But in terms of the events that you observed
personally it would be limited to visits right?
A. Yes, personally I would only observe while I
was there, yes.
Q. And I would like to take your attention, or
draw your attention to paragraph six of your Affidavit and I’m
just going to read it here and paragraph seven, “despite the
language barrier, I don’t speak Russian, Alla and Valentin
don’t speak English, Alla Nikityuk was interested and asked
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questions would get translated by Anastasia or Svetlana. On
the other hand, Valentin seemed rather unhappy about the
occasional English at the dinner table. This first impression
strengthened after further visits which happened on average
monthly. Valentin showed no interest in me or in general
family activities such as dinner. He often expected to be
catered for and if he was not the centre of attention quickly
lost interested and went to his room or started watching
Russian television in a noise level that it was hard for other
to continue their conversation.” So I suggest to you Ms.
Caspers that these all were signs that Mr. Nikityuk was deeply
unhappy with life at the house, wouldn’t you agree?
A. No I would definitely not agree. To me it
seemed just he was not interested in me personally or he was
not interested in people who would not communicate to him
directly and give attention to him but it didn’t seem to me
that he was unhappy, was what he was generally catered for.
Q. And at paragraph eight, you indicate, “Alla
and Valentin always had their needs taken care of” but as you
agree previously you were not there very often, your
observations are limited to those occasions in which you
visited, correct?
A. Yes of course, I can only state what I was –
when I was visiting, yes. But there was always food there and
I saw them often going to the fridge and taking food out and
there was always a full fridge, yes.
Q. And you indicated at paragraph 9 that you
never – you never, ever observed abuse in front of me, nor any
signs of abuse and then if you drop down to paragraph 11,
during the whole time Anastasia never mentioned any bruises
and I did not notice any. You would agree however that if the
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bruises, if there were – if Alla Nikityuk in fact had
sustained bruises on that weekend, is the allegation in this
case, that you may not have seen them unless she or somebody
else showed them to you, right?
A. Which weekend are you exactly referring to,
the August 20, 21?
Q. That’s correct.
A. Well on that weekend, I mean I was there and
Alla Nikityuk, as far as I remember, she was wearing a tank
top and so I would have seen these bruises on the arms and I
definitely did not see any bruises there.
Q. But you would agree that if physical
altercation had taken place but the bruises had not begun to
present then of course you wouldn’t have seen those bruises,
right?
A. I guess so, yes.
Q. Those are my questions Your Honour.
THE COURT: Thank you, Mr. Mae?
CROSS-EXAMINATION BY MR. MAE:
Q. Yes Your Honour, Mr. Caspers, my name is
Andrew Mae and I represent the YMCA and Yana Skybin. So I
gather that you arrived back in Canada last night?
A. Yes, that’s correct.
Q. And your staying at Rankin Way?
A. Yes, that’s correct.
Q. And have you had any discussions of – I
presume that Mr. and Mrs. Danilov have told you about these
court proceedings.
A. To some limit, I haven’t talked to them on
the phone recently, I talked to them a couple of months ago
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but I haven’t actually had to call or phone calls with them in
the last few days or weeks.
Q. What about last night, was there discussion
about this court case last night?
A. I mean, when I talked to it was with Pavel,
it was limited to the importance of our statements and setting
some dates straight.
Q. So he gave you some information.
A. No, no it was just a discussion. We were
trying to remember like when we moved out and these things and
when we moved into together and these things.
Q. And nothing is being said about what has been
happening in these proceedings.
A. Not to me.
Q. Okay are you aware that in these proceedings
that Mr. and Mrs. Danilov are suing the Nikityuks as well as
the YMCA?
A. Yes.
Q. The Affidavit that you swore back in 2013,
can you tell me how that was prepared?
A. My wife told me that there was a letter
stating things that were not true about events happening,
especially in this August 20, 21 weekend so that she was going
to prepare this – an Affidavit by herself so I offered her
that if there is any support I can give that I would be happy
to state any facts that I observed truthfully.
Q. So who prepared this Affidavit, did you
prepare it yourself or did your wife prepare it or?
A. I prepared it.
Q. Okay. At paragraph one of your Affidavit you
swore, I’m making this Affidavit in support of the legal
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action of Svetlana Danilova and Pavel Danilov against the YMCA
and Yana Skybin, there is no mention in there of the
Nikityuks, can you explain why?
A. I’m not sure.
Q. Were you aware at that time that the
Danilov’s were suing the Nikityuks for money?
A. You mean in 2013?
Q. Yes.
A. I think so but I’m not 100% certain, I would
not swear on this.
Q. So as I understand it, you first went to
Rankin Way in September, 2009?
A. That’s correct, yes.
Q. And over the period of time that you were at
Rankin Way were you shown around the house, were you given a
house tour?
A. Yes.
Q. And do you recall the basement office?
A. I believe in September 2009 there was no
basement office. In September 2009 the basement was still
under – partially under construction and the first – I don’t
know exactly when the basement was done but at the beginning –
we were staying in the basement.
Q. And – but you – in the office you saw all of
the rows of binders with information in them?
A. There – what was in the office which I
believe was upstairs, yes there were as in any office, there
were a number of binders with stuff in it, yes. I never looked
into those binders.
Q. No and I wasn’t going to ask you that I was
just recalling. So originally the office was upstairs and then
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moved into the basement.
A. Yes.
Q. And did – I understand your background is in
computers or you – you’re a computer...
A. I have a diploma, a general degree which is a
combination of a Bachelor and Masters in physics and I have a
PHD in electrical engineering.
Q. So you’re certainly well versed then in at
least knowing what a computer is.
A. Yes I know what a computer is.
Q. I’m sure you know more than me. So when
you’re at the property at Rankin Way, do you recall any of the
computer equipment that was there.
A. Not any specific details.
Q. Okay but you – you recall there being
laptops, desktops?
A. Yes there were a number of desktops and
laptops.
Q. And all the usually peripherals, printer,
scanner.
A. Yes, yes.
Q. And would that have been up in the bedroom as
well as – were they upstairs and then moved downstairs, do you
recall?
A. I believe so, yes.
Q. Thank you. At paragraph eight of your
Affidavit.
A. Yes.
Q. You swore, there was always food available,
they had nice bedrooms upstairs, which I assume that you say
you observed yourself.
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A. Yes, I was in them, yes, at times.
Q. And you also say, and Pavel subscribed to a
number of Russian cable TV stations for them despite the large
cost associated with it for him, what was the source of your
information for that?
A. The price, I mean, at some point – I never
subscribed to cable while I was living in Canada but I looked
at the prices and I saw that foreign channels typically have a
large price. So there was information from that of course, I
saw the Russian TV channels on TV. In addition, Pavel had
mentioned that to me, that the main reason he subscribed to
them was because of them and I noticed that at sometime after
they moved out the Russian TV channels were not subscribed to
anymore.
Q. So you – you don’t know when the Russian TV
channels were unsubscribed?
A. Not exactly, no. But they were definitely
still there whenever the Nikityuks were living there.
Q. At paragraph 9 of your Affidavit Mr. Caspers,
you say, during all of these visits, up until Alla and
Valentin moved out, I never ever observed abuse in front of me
nor any signs of abuse. That’s fairly specific, do you recall
family arguments taking place?
A. There were discussions, yes.
Q. And they would have all been in Russian?
A. Yes.
Q. And so the – whatever information was given
to you about what was said over the course of the argument was
essentially translated to you.
A. Yes.
Q. But you do recall that there were arguments
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between the Danilovs and Nikityuks while you were there.
A. There were discussions between them and there
were also discussions between Pavel and Svetlana with each
other, with Nikityuks with them, so it wasn’t always clear
that it was one side against the other.
Q. But when you use the word discussions, I’m
using the word arguments.
A. I understand.
Q. So let’s – I just want to make it clear
because you – you turn it to discussions, there were arguments
as in there were disagreements between them, so far as you
were aware.
A. So if you define argument as a difference of
opinion, yes then there were arguments.
Q. Yes. And were they heated, were they – was
there shouting?
A. Voices were sometimes raised, yes. But not
more than an average discussion that I have observed in any
family.
Q. And you actually say at paragraph 10 of your
Affidavit, you’re referring to the – the argument or
discussion on the weekend of August 20, that the level of
emotions was well within a normal family argument. So let’s
deal with that, you were outside?
A. That’s correct, most of the time, yes.
Q. And you couldn’t hear what was going on.
A. Well it wasn’t like I was very far away, it
was – there was glass in between, yes.
Q. Yes. So you could see what was happening.
A. Yes.
Q. And how do you know or how did you know at
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the time that it was, I will use the word argument
specifically because you say, it became emotional, so let’s
ask about that first, what do you mean when you say which
occasionally became emotional?
A. Well I did enter once and a while to get some
water or go to toilet, so then I could observe it also
directly in contact and I saw that people were emotional
there, it wasn’t a very relaxed atmosphere, something you
could notice without being necessarily understanding every
word.
Q. Okay so when you say people being emotional,
specifically who was emotional?
A. Everybody who was at the room at the time.
Q. So that would have been your wife.
A. Yes.
Q. Alla Nikityuk.
A. Yes.
Q. Valentin Nikityuk.
A. Yes.
Q. And Svetlana Danilova.
A. Yes, sometimes Pavel would be there with me
coming in to get water too but he wasn’t necessarily
emotional, no.
Q. And who long, over what period of time do you
say this discussion took place?
A. To be honest I’m not sure, it might have been
an hour, might have been two, might have been half an hour,
something in that time frame.
Q. So it was sufficient enough for you to have
gone in a couple of times to get water and use the bathroom.
A. Yes.
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Jan Niklas Caspers – Cr-ex (by Mr. Mae)
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Q. And when you physically are in the kitchen,
you describe people as emotional, were people yelling?
A. I believe at some point somebody might have
used – louder, yes.
Q. And do you recall who?
A. It might have been Valentin, it might have
been Svetlana, might have been Alla, I’m not 100% sure.
Q. You mentioned earlier on, my friend asked you
about your observations of Valentin?
A. Yes.
Q. When he went to his room, so you say, and
watched the Russian television at a noise level that made it
hard to continue a conversation, tell me a little bit more
about that, what – did that cause any friction?
A. Me personally, it caused some discomfort,
yes.
Q. Yes but did it cause any friction between the
Danilov’s and Mr. Nikityuk, was anything said to him, turn it
down, were there any responses.
A. I believe I asked my wife once or twice if
she could ask him to turn it not as loud but I don’t remember
Svetlana or Pavel becoming – yelling at him or anything.
Q. Okay. The, I apologize for jumping around.
A. No problem.
Q. The argument that you saw – you witnessed
while you were at the property that weekend, do you recall
whether that was the Saturday or the Sunday?
A. I think it was the Sunday but I’m not 100%
sure.
Q. Thank you and in terms of the emotion, was
any body in tears, do you recall seeing anybody crying?
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A. I think Svetlana might have at some point but
I’m not sure.
Q. What about Alla, did she seem upset, was she
crying?
A. Upset yes, I don’t remember if she cried, I
don’t think so.
Q. And in terms of what you saw when you were
outside, if you saw through the window, did you see body
language, did you see people in – expressing themselves using
their arms or in a confrontational manner?
A. I did not see any arms raised, no.
Q. And as I understand it, your wife’s
involvement in that discussion was to try to calm everybody
down.
A. I believe so, yes.
Q. And you say at paragraph 10 that, and I quote
“as far as I understood, the discussion seemed to be focused
on the topics that Alla and Valentin wanted to move into
social housing”, so who did you learn that from, was that from
your wife?
A. Yes.
Q. Do you recall if there was any discussion at
the time as to why they wanted to move into social housing?
A. No.
Q. Okay. Just one moment Your Honour. Those are
my questions Your Honour, thank you Mr. Caspers.
THE COURT: Thank you Mr. Mae. Ms. Chapman is
there any re-examination?
MS. CHAPMAN: No I don’t have any questions,
thank you.
THE COURT: Thank you Mr. Caspers, you may step
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down, you’re excused but I just caution you not
to talk to any other witnesses about your
testimony, thank you. So counsel I believe we’re
in position to return to the cross-examination
of Ms. Danilova.
MR. BORNMANN: Your Honour, with the court’s
permission, perhaps we can take lunch a little
bit earlier today and rather than start now and
have to break it off shortly into the – into the
cross-examination.
THE COURT: All right, I suggest that therefore
we come back at 1:30 to begin the cross-
examination, it is quarter after 12 now, is
that?
MR. BORNMANN: Yes, Your Honour, thank you.
THE COURT: All right, so we will adjourn until
1:30, thank you.
RECESS TAKEN
UPON RESUMING
THE COURT: Okay we’re ready for cross-
examination?
MR. MAE: Yes, Your Honour, Mr. Bornmann is going
to deal with the cross-examination but I’m just
brining to the court’s attention that as a
consequence of some evidence yesterday regarding
an email from June 28, my client has provided me
with some Russian emails leading up to that
email to put it into context, I provided a copy
to my friend. I will be putting it up later on
when I deal with my cross-examination. They are
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in Russian, we have no certified translation so
with the court’s indulgence, I would be asking
for one of the Ministry interpreters to do a
sight translation of the emails for the court
purpose, if that is acceptable to the court.
THE COURT: Have they had a chance to read them
over in advance?
MR. MAE: They haven’t yet, I haven’t provided
them yet without speaking with Your Honour. My
friend has been provided with a copy and she’s
had the opportunity to speak with her client
about the email.
THE COURT: Are you satisfied with that Ms.
Chapman?
MS. CHAPMAN: I am, yes.
THE COURT: All right.
MR. MAE: Thank you Your Honour.
THE COURT: I guess we will come to it later but
you mine as well provide it to one of the
interpreters to review in advance, just to speed
up the process.
MR. MAE: I will do that and we probably won’t
get to it until tomorrow.
THE COURT: Oh all right then, it could be done
later in the day then.
MR. MAE: Thank you Your Honour.
THE COURT: All right so we are ready to call
back Ms. Danilova, oh, just a moment.
MR. BORNMANN: Your Honour, just before we
commence this cross-examination, the Nikityuks
have another tab to Exhibit 2B Your Honour.
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THE COURT: All right.
MR. BORNMANN: Tab 44 and I will hand that up.
It’s the second red book.
THE COURT: All right. Ms. Danilova would you
like to come back please to the witness box.
SVETLANA DANILOVA: Reminded of Oath
CROSS-EXAMINATION BY MR. BORNMANN (cont’d):
Q. Ms. Danilova, you lived with Pavel, Alla and
Valentine when you were first married, correct?
A. Yes.
Q. And that was in 1983 wasn’t it?
A. We got married August 26, 1983. Pavel Danilov
was my only husband in forever and since that date we got
married we rented – we rented for some time...
Q. Ms. Danilova...
A. ...yes but then our daughter was born, we
moved to be with Alla.
Q. Sorry Ms. Danilova, so just very quickly, you
got married to Pavel Danilov in 1983, correct?
A. Yes, that’s correct.
Q. And at that time you, Pavel, your mother and
Valentin lived together in St. Petersburg, correct?
A. Yes it is both correct.
Q. Yeah and so you were 20 years old at that
time?
A. Yes.
Q. And Pavel, he was 19 wasn’t he?
A. Right.
Q. So you were just starting off, correct?
A. Right.
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Q. And you obviously needed a place to stay and
Alla and Valentin provided one, right?
A. It was – no that’s not right. They didn’t
provide anything; I have a room in their apartment that was
always my room. I was even able to, you know, separate that
apartment to make it like a room apartment, there is such
thing as a room apartment in St. Petersburg in Russia. When
people, different families, live in their rooms in their
apartment, I could do this but we lived together as a family.
I had right to live with my husband and my daughter was there
and they just did.
Q. Okay Ms. Danilov, but you were 19 at the time
and you got married and Alla and Valentin were okay with you
and Pavel living in that apartment, correct?
A. It’s not that they – they were nothing to do
with, it was my decision, I could bring my husband to live in
my room.
Q. Okay and after Anastasia was born you
continued to live together in that apartment until 1988,
right?
A. That’s right.
Q. And you testified that Alla was very close to
Anastasia, Alla loved her very much, right?
A. Yes, this is true.
Q. And while you lived together Alla helped you
with childcare, helped you take care of Anastasia didn’t she?
A. I wouldn’t say so, she had fulltime job, I
was staying with the baby and I was doing everything around
the house. We have the same fridge, near the kitchen so I
cooked for entire family, my mom, Valentin, they came from
work, they have dinner prepared, what my mom did, she did
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grocery shopping I would say, they did some grocery shopping
that would be – it was easier for her because after work she
would just came to the grocery store to pick up groceries. I
did everything like cleaning and things like that because they
spent all their weekends at the cottage house and I was
responsible for the household.
Q. Alla Nikityuk is going to testify that she
helped quite a bit, as much as she could and that in fact was
the truth, right?
A. It is true because she could babysit
evenings, sometimes it was all mutual, yes she helped as a
baby if the baby was sick or something, she was a great
support to me, of course.
Q. And a moment ago you said that you’d make
dinner and then Alla and Valentin would come home and there
would be dinner, is that right?
A. Yes this is how it was, my mom could cook as
well but mostly I cooked during the day, yes.
Q. But my understanding, Ms. Danilova, is a
little different, my understanding is that during the 80’s
Valentin was often away on business for 45 days at a time,
he’d do one week back in St. Petersburg and then he would be
away for 45 days, that is in fact correct, right?
A. Yes that sounds similar, I don’t remember
specifically how long he was on his business, I don’t remember
but yeah it was something like that, yes.
Q. And Ms. Danilova, I want to go back to
something you said about Mr. Nikityuk and his work, you
compared his job to that as a shop assistant, do you remember
that?
A. What I said that then you are saying
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Svetlana Danilova – Cr-ex (by Mr. Bornmann)
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professional engineer, in Russia, literally engineer, the
position of engineer means – doesn’t sounds like when you tell
people that you’re in position of professional engineer, it’s
not the same as it sounds here. What it means here, the salary
for the professional engineer might be compared to the shop
assistant, that’s what I meant.
Q. But you would agree that Mr. Valentin
Nikityuk helped design submarines, including nuclear
submarines during the time of the cold war, that’s correct?
A. Yes he went to that – to that business –
trip, not – it’s literally business trip because they bought a
car at that time and he was in debt for that car and he had to
pay out the debt for his car and they borrowed from my mom’s
brother and he assisted them with buying this car so his
employment and actually the family didn’t see that much of his
money because it went to the car.
Q. Okay Ms. Danilova, my question was, did he
design submarines and what happened with the car, I’m not sure
that that answers that question, you agree with me do you not
that...
A. I – I was trying to tell you why – what was
the reason he took those business trips because he was
desperate, he had to do something, his salary of the
professional engineer was not enough to pay off all the debt
for his car.
Q. Okay and you would agree that Mr. Nikityuk
was given a cottage by his employer, correct?
A. His previous employer, not this submarine
design some – I believe it was previous employer. He received,
kind of, piece of land, there is some structure, like a shed
and he did his best – well you know, I wouldn’t swear, maybe
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he bought this piece of land, I wouldn’t swear on that.
Q. Okay.
A. I actually do not have – it was before even
my mom was married to him, how he got this cottage, I wouldn’t
say.
Q. But you would agree with me that it is
disrespectful to comment comparing Valentin’s job to that of a
shopkeeper, it would be – it is a disrespectful thing to say
about someone who helped raise you from age 15 wouldn’t you
agree?
A. You know what, it was the reason for us, why
we left Russia because in Russia too many things are
disrespectful in relationship to their citizenship. This was
the reason why we left Russia and it was how it was, how I
explained. To pay off the debt for the car you had to do
something beyond your regular employment as a professional
engineer, this is exactly the point.
Q. I want you to think about to 1988, 1989, you
and isn’t correct that at that time you, Pavel and Anastasia
move out of the St. Petersburg apartment with the Nikityuks
and you get your own apartment, is that right?
A. No, that’s not right.
Q. You didn’t not move out of the Valentin – you
did not move out of the Nikityuks’ apartment in 1988 or ’89
and get your own apartment in St. Petersburg?
A. Half of your statement is right and the other
half is not right so I cannot answer your question because its
half and half.
Q. Okay so when did you move out of the
Nikityuks’ apartment?
A. At some point I moved out of there, this
777.
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apartment with my daughter to live with my husband at his
place.
Q. And I put to you that that was some time in
1988 or ’89.
A. 19?
Q. 1988 or 1989.
A. ’89 – 90, yeah, sounds – sounds familiar,
yes.
Q. Okay and Pavel had been living in that
apartment too until that time, he’d been living with you and
the Nikityuks correct?
A. Say again?
Q. Pavel lived with you, Anastasia, Alla and
Valentin until you moved out in 1989 or thereabouts.
A. Yes we were living at that apartment with our
parents.
Q. So you would have been around 25 or 26 when
you moved out, right?
A. Sounds right.
Q. And when you moved into the new apartment in
St. Petersburg, Alla continued to come over and help out with
Anastasia, is that right?
A. First of all it was not a new apartment, what
do you mean new apartment?
Q. The apartment you moved to.
A. New for me.
Q. Yes.
THE COURT: New to them but it wasn’t new.
A. Yes.
MR. BORNMANN: Q. Right.
A. No, it’s not right. I would – if I can
778.
Svetlana Danilova – Cr-ex (by Mr. Bornmann)
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elaborate this from my point of view.
Q. Well I will simply put to you and you can
tell me whether you agree or disagree...
A. It was...
THE COURT: Well just wait for his question and
then you can answer.
MR. BORNMANN: Q. Alla will testify that even
after you moved into this other place in St. Petersburg, she
would come over and help out with Anastasia whenever she
could, isn’t that the truth?
A. No that is not correct. I can elaborate and
explain why, because that place my husband owned, it was
exactly what I meant before, it was an apartment with two
rooms, we live in one room and it was very tight actually, we
live in one room and there was another family actually, it was
a single elderly – living in the other room so it was a – it
doesn’t make sense actually from the reasonable person to
think that my mom would come to that place because it was
pretty tight compared with where they lived, in that apartment
and my mom she helped but mostly I drove my daughter to that
apartment, their apartment.
Q. So she helped...
A. And we also spent quite a lot of time when my
daughter was growing at their summer house, summer cottage.
Q. You, Alla and Anastasia would spend summers
together at the cottage, right?
A. That’s right.
Q. And Pavel was working very hard at this time?
A. Yes, that’s right.
Q. And you, Pavel and Anastasia moved to Latvia
in 1996?
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A. Yes, that’s right.
Q. And while you were away from St. Petersburg,
you and Alla stayed in touch by telephone?
A. Always.
Q. And in 2003 you and Pavel sent Anastasia to
go and live with Alla and Valentin in St. Petersburg while she
attended university right?
A. It was again, a mutual decision in the family
of course and we covered everything, we support completely and
parents were very happy then, actually they enjoyed more money
then they normally had. It was good for everyone.
Q. All of these events that I described, you
living with Alla and Valentin, Alla helping with Anastasia,
keeping in touch by telephone, the summer cottage, these were
all instances of family helping family, this was all positive,
correct?
A. Exactly, that is what I mean. We were always
there for each other, yes it is both my house I would say so.
Q. So it must have been very difficult for you
to find out that Alla was ill in 2005.
A. She got sick first in 1995, she first was,
I’m not sure about the year absolutely, around I would say
1995, she was diagnosed with cancer.
Q. Well let’s talk about...
A. It was very difficult for me, it was just
heartbreaking, not difficult, it was awful.
Q. And the same the second time, right?
A. Yes.
Q. And naturally as your only daughter, you
wanted to be with Alla at that time, right?
A. 2005?
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Q. So the second time you’re in Canada, it was
only natural that you as her only daughter would want to be at
Alla – you would want to be with Alla when she was sick,
right?
A. Yes, of course it was natural but I also had
a lot of obligations in Canada at that point and it will be,
like you know, the same from one side it was very natural for
me to be with my mother and from the other side I have a lot
of obligations in Canada to my family, to built my career in
Canada, to settle in Canada because we were newcomers at that
time, of course its, you know, it’s always – nothing, it’s
always what you want and what you can afford and its – this is
life.
Q. Yeah so you made a lot of sacrifices, you
took jobs as a cleaner, you spent part of your savings, you
did all of this right?
A. I never called those sacrifices, it was my
life.
Q. Okay and I put to you that this was all very
admirable Ms. Danilova, all things that a good daughter would
do. What you did is what people in good families do, right?
A. I did what I thought was the right thing to
do from my point of view. I don’t know about other people, I
know, I think its within the understanding of normal people.
Q. And Alla will testify that she – she
appreciated your visit Ms. Danilova, she really did appreciate
your visit but she didn’t ask you to make that visit, isn’t
that in fact the truth?
A. I don’t know - I actually talked about that,
do I need to repeat all of this, I actually testified about
that already and now I have to repeat, I can repeat but does
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it make sense?
Q. Your mother will testify that she, while she
appreciated your visit she didn’t ask you to make that visit,
do you agree with that statement?
A. No I do not.
Q. Alla felt she could manage, that Valentin
would help her, isn’t that true?
A. Valentin was absolutely helpless, absolutely.
He – he was always, you know what, my mom kind of put him
aside for, in many circumstances in life, like even in the
circumstances in regard of his diagnosis, medical diagnosis.
She never told him his real diagnosis, when she was diagnosed
by cancer, she has this thing that less, no better sleep in
context with Valentin. He never was involved in like talking
to the doctors or here – he never was involved with anything
like that. He put – accompanied my mom to doctors appointment
or somewhere he could be as a role as a companion but never
participated in any discussions with the doctors, never ever.
I was – when I was living in St. Petersburg I was there for
them, for both – Valentin was always shy talking to his
doctor, I was talking to his doctor. In Russia, of course
sometimes he hears, that’s not true to say, he had some
discussions but final – finally I have to go to the doctor,
talk to him and my mom took care talking to the doctor so
Valentin didn’t find out his real diagnosis otherwise he can
get upset and it will kill him, so things like that. This is
how – this is how it all was from perspective.
Q. And Alla Nikityuk will testify that these
discussions with the doctor, all of the work that you did, the
trip to St. Petersburg, the medicine, that you did a lot for
her during that time Ms. Danilova and you would agree with
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that?
A. I did everything; they couldn’t do – I did
everything that what they could not do themselves.
Q. But really Ms. Danilova, you’re not claiming
all of this, this is really not a part of your claim that your
mom and step-dad now owe you all of this money for the work
you did is it?
A. It is very complicated, I would never – I
wouldn’t answer this direct – I do not have direct answer to
this question. It is very complicated issue at this point.
Q. But this is not really part of the money
you’re claiming is it, all of this good work that you did?
A. As I said it is complicated, you know our
claim and our claim says, it depends if they are claim – if
they actually claim, I believe four or five hundred thousand
dollars and in their rent then they claim $500,000.00 from me
or and in the event my mom turned against me completely, I
would claim for this money, yes.
Q. But so this is, this is all now a debt that
your mother owes you correct?
A. I’m sorry.
Q. So all the money that was spent helping her
during this time, this is now a debt correct?
A. Debt?
Q. A debt to you?
A. It was always, in the event that they are
claiming $500,000.00 from me, yes because when I also
testified that already, in 2004 when we signed the sponsorship
agreement with my mom, it was a mutual understanding that all
the money spent during for the immigration process for – from
2004 until they live in Russia, all those monies would be
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subtracted from their amount of proceeding with...
Q. All this work you did for your mom – all of
what you did for your mom Ms. Danilova, it doesn’t sound like
a loan, does it?
A. All I did to my mother doesn’t sound as a
loan, it was not a loan.
Q. Okay.
A. But it was a mutual agreement between us and
it was never disputed until this litigation initiated and in
the event where we are now where they claim half of a million
from me, of course this is part of my claim.
Q. Before we leave Russia, I want to talk about
the family property, that is mentioned in your testimony,
let’s perhaps start with the garage, we heard testimony from
your husband saying that neither he nor you have any ownership
in the garage, that the Nikityuks owned the garage in Russia,
right?
A. This is correct.
Q. Okay so we can just – and you’re not claiming
any interest in the sale proceeds from the garage, correct?
A. Again, about what I am claiming, it’s, you
know what I’m saying, I would consider those questions like
tricky because the agreement was that my mother sending me –
so my mother sending me all the money from the proceeding, all
the money they receive from the proceeding of selling of
property in Russia in the exchange of lifetime support and
personal care for her. This was an agreement as I understood
and my mom understood in 2004, in 2008 when she did this
transfer, I didn’t even know she put gift there but it doesn’t
change anything because she understood completely the purpose
of this transfer and she understood completely what was going
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on and it is common things to do, she heard a lot about things
like that from her friends in Russia and when at some point in
life her – some is quite general, common thing.
Q. Well this is not intended to be a tricky
question, you’ve made a very specific claim about the
apartment that is separate, that is separate from the money
and so there is many claims out there that you’ve made and one
of the claims is that you own a piece – you owned a piece of
the apartment, so when we think about that claim you have in
the apartment, we can agree in the interest of moving on here,
you’re not making a similar claim about the garage, you’re
not...
A. You are not right.
Q. ...saying that you owned part of the garage.
A. You are night right about things...
Q. Did you own a part of the garage?
A. No.
THE COURT: I’m sorry, Mr. Bornmann, she already
said she had no claim of ownership in the
garage, I think what she said though is her
issue is about money that was transferred but
she did tell us that she had no claim of
ownership so that is distinct from the
apartment.
MR. BORNMANN: Q. Thank you Your Honour. And with
respect to the cottage, you personally are not asserting any
ownership interest in Valentin Nikityuk’s cottage, right?
A. If you’re talking about ownership, again it
is a – formally it is not my cottage, it didn’t belong to me
just formally speaking but as a – between family members I
heard so many times from Valentin, when Pavel’s father was
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helping he just spent his vacation days, weeks – vacation
weeks at that cottage house working on additional, to built
additions to that cottage house so the family would be more
comfortable in that cottage house. Valentin personally and I
heard this so many times, that he told that everything will –
will be inherited by Pavel anyway, inherited by myself, my
other family, so it was that kind of understanding.
Q. But Valentin is still alive, correct?
A. Yeah but it was – yes, I’m just trying to be
absolutely clear what we mean. No ownership at all.
Q. And about the car, you’re not claiming any
ownership interest in the car.
A. No.
Q. Okay, thank you. And you would agree about
the apartment, that at the time it was sold, you were not
registered as an owner of that apartment correct?
A. Apparently not, that was a surprise for me.
Q. The only registered owners were Valentin
Nikityuk and All Nikityuk, correct?
A. This is correct.
Q. And now, you testified well before
privatization, when you married Pavel in 1983, you were
registered at Alla and Valentin’s apartment, correct?
A. Always been, always been.
Q. Back in...
A. Since I was 15 years old.
Q. Okay and when Pavel moved in, he was never
registered at this apartment.
A. No.
Q. Pavel was registered at his parent’s place
right?
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A. Yes. Parent’s place and after – his parents
they gave him a share in their property. Yes, literally, his
parents gave Pavel a share from the family property.
Q. His parents gave that to him, correct?
A. Yes, yes.
Q. And in 1985 when Anastasia was born, she to
was registered at Alla and Valentin’s apartment, correct?
A. That’s right.
Q. But it also true that when you, Pavel and
Anastasia moved out in 1989, the three of you Pavel, yourself,
Anastasia were registered at Pavel’s apartment, correct?
A. No we were still registered at that
apartment, with parents but we were living at Pavel’s place
for some time.
Q. Well the Nikityuks will testify that when you
and Anastasia registered at Pavel’s apartment in ’89 or
whenever it was, you both had to deregister from Alla and
Valentin’s apartment.
A. About what they are going to testify, okay
they are going to give their testimony but can I – what can I
do with this, what is this to do with me, I’m trying to be
honest answering my questions here, I suppose that is what I
have to do here, what they have testified is their testimony.
Q. But you would agree that you couldn’t be
permanently registered in more than one address at that time,
correct?
A. No, permanent, no.
Q. You could only be permanently registered at
one address right?
A. Yes.
Q. The Nikityuks will also testify that it is
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when you moved to Latvia in 1996, that’s when you and
Anastasia were registered once again at their apartment but
this time it being post-privatization, you were registered
without rights of ownership, correct?
A. Since I left – first of all, I do not
understand why I need to know what they are going to testify,
I will probably be not even present here because it’s going to
very painful for me and I don’t want to be present. I – I
understand and this is why I’m here that they are going
testify a lot of things that are not true and very painful to
me and so what is it do with me, their testifying.
THE COURT: Perhaps I can help; it is important
that the lawyer puts to you what they might
testify so you can respond to it now.
A. Oh.
THE COURT: Because you won’t have a chance
later. It is a matter of fairness to you, if
they are going to say something you ought to
know about it now and then you can give your
answer because you wont’ be able to testify
later, whether or not you are here to listen to
them, this is your opportunity to respond to
what he says they will say. They may not say
that or maybe somewhat different but he is going
to put something to you and you can respond to
it as you wish.
A. Oh okay, sorry I – thank you for this
clarification, so what was the question?
MR. BORNMANN: Q. Okay when you moved to Latvia
in 1996, you were re-registered at Alla and Valentin’s
apartment.
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A. No I did not.
Q. And Anastasia was also re-registered at your
apartment in 1996 when you moved to Latvia.
A. As I said, I was always registered with this
same apartment.
Q. But you agree that you were registered
without rights of ownership, correct?
A. When I left, at the moment I left Russia, yes
I was registered, what do you mean, I didn’t exercise this
right for ownership at some point, this is not correct that I
was registered without the right to ownership, this is
absolutely not true. Absolutely false statement.
Q. But I believe you have testified already that
you admit that when the apartment was sold you were not
registered with rights to ownership, correct?
THE COURT: Well she told us that it was a
surprise to her.
MR. BORNMANN: Q. Yes.
A. I believe I answered this question already,
yes.
Q. I – just...
THE COURT: I thought she said when you asked her
earlier that that was a surprise to her when
they sold it and she then became aware, I guess,
that she wasn’t registered, is that how I
understood your evidence?
A. Exactly because when I left Russia, I left
Power of Attorney for my mom and I was as I said, we were
always there for each other and I trusted her completely and
my trust and I believe that she would do everything that was
supposed to do – that she was supposed to do for me and my
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daughter, yes.
MR. BORNMANN: Q. But just for clarify sake and I
think we have the answer here but I don’t need – we don’t need
to put the ownership certificate or the sales agreement in
front of you, you admit that at the time the apartment was
sold you were not registered as an owner.
A. But it was a surprise for me.
Q. But it was a surprise, okay. And you would
agree that there are benefits to being registered at an
address even without rights of ownership, even if you don’t
live there?
A. I didn’t...
Q. I’m talking about the registration process
and you were registered, it was a surprise you say, but you
were registered without rights of ownership and so my question
is that you would agree that there are benefits to you to be
registered at an address even if you don’t live there.
A. I’m sorry I’m completely lost to be honest,
maybe ask me more the expression, I’m lost with all this
registered and registered, I think I answered all the
questions with those things about my position with this
apartment.
Q. Okay well let’s just move on, perhaps we can
come back...
THE COURT: Well we’ve heard what the benefits
were, why don’t you just put that to her.
MR. BORNMANN: Thank you Your Honour, I will do
that.
THE COURT: It came in earlier evidence which
would have heard.
MR. BORNMANN: Q. You would agree that being
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registered, even without rights of ownership would make it
easier for you to come and go from Russia, would it not?
A. It’s nothing to do for me to come – this
registration at the apartment, nothing.
Q. And you would agree that being registered at
an address in Russia would make it easier for you to access
government services in Russia, correct?
A. When we left Russia I forgot about the
Russian government citizens at the very point, in 1996, I’m
not even going to claim Russian pension and my husband is not
going to claim Russian pension. Also we have something but to
receive this Russian pension we can, you know, we should put
our life on hold for like three months for all the paperwork
and everything, this was the reason why I didn’t go to Russia
to do this same that my parents do this registration of the
share in the apartment because it would take forever and I
didn’t have so much time to stay in Russia and go through this
amount of paperwork. So better not to ask me about the
government services that I was – I would be rely on, no.
Q. But both you and Anastasia agreed to be
deregistered from the apartment before it was sold, correct?
A. Yes.
Q. And you do not have any document that shows
you were promised any money in exchange for deregistering,
correct?
A. Was always trust to my mother, she had power
of attorney, she had all the authorizations, all the
authorizations, she always had full authorizations from me
because I never dealt with Russian services and its just make
me, you know, sick even thinking about that.
Q. So there was trust but no documents showing
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it?
A. No.
Q. Okay. And in fact the Nikityuks will testify
that no promise was made to you or Anastasia in exchange for
deregistering you from the apartment, correct?
A. It was, again, the same agreement that my
mother was going to give all the money from all the
proceedings they have to me in exchange for her care and
support for her lifetime, for her and for her husband, for
Valentin.
Q. You would agree however, that if you had
refused to deregister in 2008, Alla and Valentin could have
gone to court in Russia to have you deregistered, correct?
A. Exactly, I didn’t see coming. The word court
in any situation of our family, the word court would never
ever came to my mind or something, it was complete trust, from
both sides.
Q. But you would agree that given that neither
your nor Anastasia had any ownership rights and given that you
didn’t live in Russia, it would not have been very difficult
to have you deregistered from the apartment, right?
A. Oh it was very difficult. It was, yes, they
have to go through the court but again, Russia court, it would
take forever, probably not in their lifetime.
Q. Okay and one final question, I will put to
you the Nikityuks will testify that neither your nor Anastasia
have any claim, interest or other entitlement to the
Nikityuks’ apartment or the sale proceeds from any of the
Nikityuks’ Russian property, isn’t that the truth?
A. I understand what you’re saying but it’s not
the truth.
792.
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Q. Okay. Ms. Danilova, can I direct you to this
Sponsorship Agreement, this is in Exhibit 2A, tab 1.
A. Yes.
Q. And as you know the court has heard some
testimony already about this document.
A. Yes.
Q. I want you to think back to 2004, at that
time you knew that the sponsorship application process would
take a long time, right, years?
A. Yes that’s right.
Q. And you thought, at the time, it would make
sense to start the process right away because it would take a
long time, right?
A. Can you elaborate right away? Can you
elaborate?
Q. Oh can I elaborate. So when you, back in
2004, you thought this application process is going to take a
very long time.
A. That’s right.
Q. So it should be started right away, there is
no point in delaying the start of that process, you wanted to
get it started right?
A. That’s what my mom got me to do because
Valentin was absolutely desperate about his healthcare in
Russia and she was in the same position and yes they begged us
to start this during our last visit to them in St. Petersburg,
shortly before we left Latvia to move to Canada.
Q. And they both asked you, is that correct?
A. I mostly communicated to my mom but Valentin
was very much onboard and because he was very proud in front
of his brother and his brother a lot abroad as we told, he
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actually – a lot aboard and Valentin was very proud in front
of his brother that he would go to Canada to live.
Q. But in 2004 there was not guarantee that the
Nikityuks would be approved, correct?
A. That’s right.
Q. And as well, there was no certainty that the
Nikityuks even if they were approved would want to come,
correct?
A. I would say so, yes because they could decide
at the last minute that they are not coming, yes and then we
would have lost all the money we paid for the immigration and
for everything, yes that would be, yeah.
Q. At that point you realize, they could decide
they didn’t want to come at any point.
A. Yes.
Q. And I think you mentioned this already but
you and Alla discussed this often by telephone?
A. Discuss what?
Q. The sponsorship process, immigrating to
Canada, lots of general conversations about coming to Canada.
A. What is a general conversation, I was so busy
for general conversation, you know.
Q. You and Alla talked about immigration, the
possibility of immigration by telephone?
A. At what year?
Q. In 2004?
A. No we were not – I wouldn’t say we were
talking a lot about general – that’s not right to say, no. It
was decided kind of, as I said, when they were living in
Russia during the – during our visit to St. Petersburg before
we left Latvia to live permanently in Canada it was decided
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that it was literally what my mom told that you are not going
to abandon us here because we are going to die here, you know,
this was the conversation.
Q. And after that you didn’t talk about
immigrating to Canada by telephone very much?
A. Not very much, I just explain to my mom that
first it should – we should obtain the permission of Canada,
from Canadian government, the permission that we can sponsor
them. To obtain this kind of permission we can show the
Canadian government that we have enough – we have enough of
income to sponsor relative here in Canada and I explained to
my mom that – I was explaining those things to her, that we
need to – I don’t remember the exact amount, let’s say
$40,000.00, we need to show $40,000.00 income and it is how it
worked, as soon as – if you earned this kind of income in
Canada and can show, to demonstrate this kind of income to
Immigration Canada, you’re allowed to start the application
for immigration of your relative. For in our situation it took
about a year for Pavel to earn this kind of income to
demonstrate that he earned this kind of income, I was
explaining my mom this kind of thing but it wasn’t like every
day, she understood. We were waiting for this point for when
we could start, yes.
Q. And though you and Alla were talking in these
conversations, you would have to check back with Pavel because
he – it was his income that you were relying on, correct?
A. Yes, it was – of course but even it was just
formal procedure, we’re talking here about formal procedure.
It was mutual understanding that although being just the
formal requirement when you can sponsor your relative, it’s
not the case when my mom would come to live with us, with
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Valentin on this kind of salary. So it just, one thing is a
formal requirement, the other thing is the agreement in the
families and how family saw this immigration would work for
our family.
Q. Now the understanding between you and your
mom at this point, would it be accurate to say you were going
to start the formal process, as you called it.
A. Yes.
Q. And you’d figure out how to finance life in
Canada later when the Nikityuks were approved.
A. No, that’s not true and that’s not correct.
After, actually, we were allowed to sponsor them, this is the
conversations started about how in reality we are going to
support them here when they come and we explained actually
that it’s the commitment for 10 years’ at least formal
commitment but we always were talking about lifetime because
for us, 10 years was, you know, it’s the same thing as
$40,000.00, it’s a formal requirement of the Canadian
immigration but we were talking about our family and our
commitment for lifetime, of course 10 years’ security just to
– and also lifetime and then it was conversation not with me
but with my husband, because he was mostly the provider and it
was a conversation, direct conversation first over the phone
in 2004 before my husband signed this agreement with my mom
but it was his actually conversation with my mom, that he
personally said that, you know what we have, we have assets we
will sell and of course we are not relying on you solely and
so I think my husband, it should be his testimony because...
Q. Well we heard from your husband and you tell
me if you agree with this characterization but from what I
understand the Nikityuks faced almost an ultimatum of sorts,
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you could either give us all your money when you come or we
the Danilovs will not sponsor your immigration, correct?
A. Exactly – that signature cost that money to
put this straight you can say so, that the signature cost that
$260,000.00, it was the price for the signature.
Q. Okay now it won’t be a big surprise to you,
having sat through your husband’s cross-examination that the
Nikityuks will testify that in 2004 they made no decisions or
promises about either immigrating to Canada or how they would
financially support themselves in Canada and I put to you that
that is actually the truth.
A. This is your opinion or – we are very
responsible, myself and my husband, my husband would have
never put his signature. When he put his signature it meant
something for him, he understood that this is a very important
document, sponsorship agreement, it’s not just an agreement
between myself, my husband concerned and all Nikityuk, it’s
three-way agreement. You know we’re educated people, it’s a
very serious thing, it’s an agreement between Immigration
Canada involved, there – basically this is Canada behind this
agreement and 10 years’ commitment and just to resort to – we
were going to become the Canadian citizens in the future, we
knew how actually to proceed with the Canadian citizenship and
we were thinking about things like that. We were – our
intention always to be very loyal Canadian citizens, we came
to Canada we started to research all the laws or whatever was
related to our activity. We did everything ourselves starting
from – so what I’m trying to say, its October 2004, my husband
been employed for almost 1 year, we were so grateful actually
to Canada already and we had to do something very serious
actually before he put – it says there are laws about social
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assistance here, very scary laws. We knew, you know, that
there is a so common thing that people just come into Canada
and the immigration, they are making some attempts to find a
job and welfare is quite an option for them and sometime
people is not pretty comfortable being on welfare so we knew
what social assistance mean. What we didn’t want in 2004 is to
– our family to be associated with social assistance of any
kind, we can’t just swear to the Canada government that we
will not in this position, this is why the signature cost
$260,000.00. Quite a – not a – like big money for a 10-year
commitment.
Q. Ms. Danilov, the – I’m glad that you
mentioned that you researched the law on this point because at
any point between 2004 and 2008, you and your husband could
simply had withdrawn this sponsorship application, isn’t that
right, you were binding yourself to anything, you could back
out at any time and that’s the law Ms. Danilov.
A. When you’re – actually when you mention it
now I recall something like that but...
Q. Thank you.
A. ...at that moment I do not recall exactly but
when you’re mentioning now, yes I – it’s coming to my mind, it
was something like that. That the application can be withdrawn
but I’m not certain about the exact point and it doesn’t
matter anything actually because we were not intending to do
things like that and this is why it was not important for me,
I didn’t remember – I do no remember this conditions at the
moment because that condition was not important to me.
Q. Yes Ms. Danilov, you just provided the court
with a very extended explanation of the significance of this
decision back in 2004, signing the sponsorship agreement, but
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I put to you that you could have withdrawn that sponsorship
application at any time up until Canada’s final decision to
grant...
A. It was not our intention.
Q. ...a permanent resident visa.
A. My answer would be, it was not our intention
and I don’t even remember the specific of this condition at
this moment because it was not important for me, it was not
ever our intention to withdraw the application. That I
remember for sure.
Q. Okay and I put to you again that neither Alla
nor Valentin made any specific promises about their money back
in 2004, correct?
A. Which money?
Q. Their money. They did make – they didn’t
promise you any money in 2004, you can disagree.
A. The agreement was that if, if they decide to
enter Canada, you know there is common sense behind that, the
agreement was if they decide to enter or will be allowed to
enter, first we need receive before they enter, we need to
receive this money on my account, in my full possession so we
secure this situation for 10 years’ commitment, this was an
agreement. They – there was an option that they just stay in
Russia then they live in that apartment and their cottage
house, that’s it. We just took losses, I don’t know – yes, it
would be our losses you can say so, the money we spent for
immigration, the money I spent for my mom’s surgery and things
like that so we saw this as an option. But in this case they
just stay in Russia, you know, two options, probably I am
clear – I believe I am clear.
Q. Ms. Danilov, I put to you the only statement
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that was made that could border on some promise of some sort
at that time was that you stood to inherit everything when the
Nikityuks died, our clients – my clients will testify that
they did in fact, they may have in fact said back then that if
they pass away, you know, once they pass away you stood to
inherit what they owned but that was after they died Ms.
Danilova.
A. Inheritance, you’re taking about an inherit
something.
Q. Yes.
A. That, you know, I don’t even know how to put
it. I am so experienced in life, you know, I went through a
lot, the last thing I would rely on would be inheritance
because Valentin has two daughters, as I said, it was not
important, he didn’t have relationship but whatever, he has
two daughters and inheritance, inheritance is the last thing
that would come to my mind, would cross my mind, I’m too
responsible to make decisions based on the future inheritance,
it’s ridiculous.
Q. But you would agree Ms. Danilov that even as
late as 2007 when the Nikityuks are here in Canada visiting,
even in 2007, they were undecided about whether they would
immigrate, isn’t that right?
A. This is correct, that is exactly how I put
it. They had two options to stay in Russia with all those
money and cottage houses and garages and I accept all my
losses or they transfer their proceedings of all those
cottages and garages to my name.
Q. Right.
A. For the fulltime – for the full care and
support for their lifetime, yes.
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Q. But you provided a verbal offer in 2004 and
your evidence is that you had not, that offer had not been
accepted in 2007, correct?
A. I’m sorry.
Q. Your testimony is that you made a verbal
offer to the Nikityuks in 2004, give us everything and we will
sponsor you to Canada, that’s your testimony.
A. It’s not verbal, this was a signed agreement,
it was not this – this agreement was signed only because its
because associated with that money.
Q. But you would agree with me that this
arrangement is not set out in the sponsorship contract,
correct?
A. Of course not and it was mutual understanding
of the family.
Q. A verbal mutual understanding, correct?
A. Yes in the family and everyone trusted.
Q. But the Nikityuks still hadn’t said yes in
2007, had they?
A. Yes to what?
Q. To the proposition that they have to give you
all their money in order to come to Canada.
A. I – I can’t make it easier because what I am
insisting here on, that they did it, they did it, they
transferred money to my account and they came to live in
Canada under the sponsorship agreement with me. I’m just
trying to make your life easier here, I’m relying on the fact,
to the fact that happened because they picked up, they choose
the option.
Q. Ms. Danilov, do you remember testifying under
oath in 2014?
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A. You mean...
Q. At the Examinations for Discovery.
A. Yes, yes.
Q. Perhaps I could turn the court to the
transcript of Mr. and Mrs. Danilova at page 104.
THE COURT: Do you want that in front of the
witness, would that help, if she has it.
A. 104.
MR. BORNMANN: Yes, Your Honour.
THE COURT: All right.
A. Okay, yes I have.
MR. BORNMANN: Q. And on page 104, starting at
line 11, there is question 439.
A. Yes.
Q. And it’s in the middle of an exchange but...
A. Yes.
Q. ...and so the question, it was a question
fragment, the Danilovs and the Nikityuks and then the response
is, “yes all the family, yes the family except my daughter
because she was a student at the moment and she was going to a
separate house.” And then here is where we get to this part of
your testimony Ms. Danilova, “except Valentin because to
Valentin everything Alla communicated with Valentin, we
communicated everything with Alla.” Mr. Danilov, “yes”, Ms.
Danilova, “and she communicated everything to Valentin, it was
her responsibility or whatever you call it to communicate with
Valentin, everything in the right way”. Mr. Danilov,
“responsibility or” and then Ms. Danilov, “whatever you call
it.” And then we go to page 105, line 124, Mr. Danilov,
“whatever you call it and the thing is that never once we
immigrated it Canada in 2003, I personally never spoke with
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Valentin and I think Svetlana didn’t either, we, Svetlana
spoke with Alla and Valentin was Alla’s member of the family
who was going with her to Canada and he didn’t decide
anything.” Ms. Danilova, “there was no his signature.” Mr.
Danilov, “first”, Ms. Danilova. “anywhere”, Mr. Danilov,
“first condition from his side he stays in Russia” and then
this is the part, Ms. Danilova, “and it was an option, as a
matter of fact it was an option for Valentin to stay in Russia
because during the conversation with my mom, when they came
together in October 2007, my mom communicated to me that
Valentin is kind of making his decision, where, where he is
coming to Canada or not, this is why he came to see whether he
likes it here in Canada or not and in case he is not coming
she was even considering an option to sell his, her share of
the apartment, to sell my share of the apartment and leave him
in Russia.” Correct?
A. Yes, everything is true.
Q. And that’s all true. So in 2007, the
Nikityuks have not agreed to the proposition that they are
going to give you all your money in return for coming to
Canada and you still have the right to withdraw your
sponsorship application at any time, correct?
A. No, I, not at any time. As I mentioned to
you, we would not even go for that withdrawal of application.
As I mentioned to you that we did research about the law in
association with what we were doing and I don’t know, maybe we
were not right but I don’t remember even this condition about
– you keep referring to this condition to cancel the
application. At this point I don’t remember this option, maybe
– I don’t know even what to say, we didn’t consider this as an
option, withdrawal.
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Q. Well I think...
A. I didn’t feel that you can withdrawal with –
but with money, you cannot refund the money or you can
withdraw at the very early stage, I remember there are two
stages as I mentioned. First stage is approval of financial
eligibility of the sponsor, we paid $1,000.00 for that, here
in Mississauga, office in Mississauga decided if you have
financial eligibility to sponsor a family member and the
second stage is in Moscow, it was in Moscow for them, then you
send all the applications with the support documentations and
then you go through the security check and medical examination
and you pay at the end or you – I honestly don’t remember the
exact process but if you keep referring for the withdrawal of
application, it was not...
Q. Ms. Danilova I recognize you’re not a lawyer
and this is not a legal debate...
A. Yes.
Q. ...but just in fairness to you, I will put to
you and then we can move on that there is a regulation, called
the Immigration and Refugee Protection Regulations and there
is a provision in that regulation called the withdrawal of
sponsorship application and there is a subsection numbered 119
that states a decision shall not be made on an application for
permanent resident visa by a member of a family class if the
sponsor withdraws their sponsorship application in respect of
that member. That means, Ms. Danilova, that right up until the
point where Canada makes a final decision on an application
for a permanent resident visa, the sponsor can withdraw the
application.
A. But as a matter of fact, I told you more. I
told you that we were ready to accept losses, I told you
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literally in my words, we were ready to accept our losses in
the form of the money we paid for immigration if parents
decided not to go to Canada, stay in Russia in all those – all
the apartments, garages and cottage, not to go to Canada and
we will continue to live in Canada without them in this case.
It would be – would probably be easier for us as it is turning
out now, it’s not probably, I’m sure it would easier for us
and to – we didn’t but they choose this option to go to Canada
and they actually followed all this agreement. They
transferred money, I received this money in my account,
whatever my mom put that, she put it as a gift because it is
how she saw this money, actually the agreement was that just
that give this money to me so it would be to my account
without them or something, to transfer money to my account in
my full possession and give me the full power I would say so
here, how to use this money but they transfer me that I will
put this money into use for their – in their best interest for
their, actually but of course in the connection with the
entire family situation in Canada. So this money secured the
sponsorship agreement.
Q. Okay.
A. They only came after. I even – I believe I
bought the ticket for them after they transferred this money
but maybe its not that important because now everything is
important it – I trusted them that the send this money, they
sold everything.
Q. Your Honour, I must confess to having lost
track of our start time because of the delay, are we...
THE COURT: It’s probably a good time to take a
break, I think we actually started at around
2:00 by the time we got back into court. So
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we’re taking the afternoon break now, we can
return and continue with cross-examination.
MR. BORNMANN: Thank you.
RECESS TAKEN
UPON RESUMING
THE COURT: Yes, Ms. Danilova would you please
return.
MR. BORNMANN: Q. Ms. Danilova, let me give you –
I want to put to you the case, your daughter and her husband,
excuse me, I want to put to you the case your mother and her
husband, your step-father are making out against you.
Yesterday when you became your examination in-chief, you
indicated, when you were talking about the sponsorship
agreement you said, your mother was the most important person
in the world for you and that is why you are here but Ms.
Danilova I put to you that you are here for an all together
different set of reasons, you’re here because you promised the
Nikityuks a life, a life here in Canada as described in that
email Pavel Danilov sent to the Nikityuks on July – on January
27, 2008. And I put to you that was an email in which Pavel
Danilov, your husband, assured them that there was a risk free
investment providing a 10% annual return, isn’t that right.
That was an email in which it was clear that they were to live
separately and I put to you that’s in fact what that email
said didn’t it, and you can agree or disagree.
A. It’s more complex then agree and disagree.
Q. And I put to your mother, Alla, told you that
that was what they wanted, they wanted a risk free investment
and based on that they would go ahead and sell their Russian
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property, isn’t that right.
A. From my point view, no that is absolutely not
right. You’re asking if this statement is right or what their
claiming.
Q. You can disagree whether – you can say
whether you agree or disagree with this, I put to you that
Alla Nikityuk and Valentin Nikityuk entrusted you with their
life savings, the sum of what they accumulated in their
lifetimes and the sent it to you by wire transfer, isn’t that
right, that’s what happened.
A. That’s not right because – there are words,
small words that twisted the fact and that makes it not right
from my opinion.
Q. And I put to you that you broke the promise
that you made by taking part of their savings and investing it
in the stock market using a prototype software that you and
Pavel had developed and which Pavel said lost most of that
money within days, within months of the time in which it was
given to you.
A. Disagree.
Q. And I put to you that you took another part
of that money and you bought a house in your and Pavel’s names
and you told your mom that the house was actually in
Valentin’s name.
A. Disagree.
Q. And I put to you that when your mother and
Valentin were unhappy living with you and Pavel and they are
adults and they are capable of choosing where and how they
live, you told them they had to live with you and that was
because their living with you helped to pay for your
lifestyle, your nice house, your nice furniture, your cars
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because of the alleged loan agreement that you had them sign a
year after they got here, isn’t that what happened Ms.
Danilov?
A. I disagree.
Q. And you refused to listen to your mother when
she told you that she did not want to live with you and Pavel.
A. I disagree.
Q. And when you left, when they left, when the
Nikityuks moved out you tried to harm them further by making
false allegation of fraud against them, against your mother
and Valentin by reporting them to Ontario Works and writing to
social housing, that happened didn’t it?
A. I disagree with the statement you just made.
Q. And then you stopped providing them support,
right?
A. I disagree with the statement you just made.
Q. And when that didn’t work, you sued them,
correct?
A. I sued them, that’s correct but the other
side is not.
Q. And much of – and much of all of this is also
why you were found in breach of your sponsorship agreement,
correct?
A. My – say again?
Q. Your failure to support the Nikityuks that’s
why you were found to breach your sponsorship commitment to
Canada right, because you failed to support the Nikityuks’.
A. Disagree.
Q. Okay well let’s talk about the agreement that
the Nikityuks made, you would agree and perhaps it would help
if you turned to Exhibit 2A, tab 3, this is the January 27,
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Svetlana Danilova – Cr-ex (by Mr. Bornmann)
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2008 email.
A. Could you please repeat.
Q. It is tab 3 Ms. Danilova.
A. Yes.
Q. You know this email right?
A. Yes I had a chance to review it.
Q. Please.
A. Yes.
Q. Oh you’ve had a chance to review it, okay.
And you would agree with me that on page one we have a living
scenario in Canada, right?
A. Page one?
Q. It’s page one Ms. Danilova.
A. It’s an English translation, what actually –
this – what kind of document, what is it, I don’t understand
what is it.
Q. This is an English translation of the email
your husband sent the Nikityuks on January 27, 2008.
A. How would you say this is email.
THE COURT: Just to remind, I know you’ve looked
at this before but can you just give me the tab
again.
MR. BORNMANN: Sorry, it’s in the red book at tab
2A, or sorry tab 3, Exhibit 2A, tab 3. So it is
the first red book Your Honour, tab 3.
THE COURT: Thank you.
MR. BORNMANN: Q. Your husband testified that
this is an English translation of an email sent to the
Nikityuks, he indicated that there was a subject line in
English that said Canada calculation but otherwise the
contents as translated reflect the Russian email sent to the
809.
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Nikityuks, correct?
A. I don’t remember what my husband testified
and do I need rely on what my husband testified. You’re just
pushing me to rely on what my husband testify.
Q. Ms. Danilov, you would agree that this an
English translation of the email that was sent to Alla and
Valentin Nikityuk on January 27, 2008, correct?
A. Actually when I said that – you, I’m sorry
you are kind of misleading me here because you said that,
you’re referring to email of January something, what you said.
Q. January 27, 2008.
A. I remember there was email but this document
in tab 3, I cannot identify that its that email because I
cannot see that this is email. I see the text here and maybe
it is different text, I don’t know. It’s – what I can see here
there is the last page.
MS. CHAPMAN: If I can assist Your Honour, in
Exhibit 1A, tab 30, there is an additional copy
with this email with the heading. Albeit this
version is only in Russian but it might assist
Ms. Danilova in recognizing the document.
THE COURT: All right, why don’t you put that in
front of her sir, so that she can look at that
at the same time.
MS. CHAPMAN: Tab 30.
A. It is in our production, tab 30, right?
MS. CHAPMAN: Yes.
MR. BORNMANN: Q. It is the same document Ms.
Danilova. This is not helping the court here.
THE COURT: All right why don’t you ask her a
question now that she’s got it in front of her
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and break it down into small bites if that is of
more assistance to her.
MR. BORNMANN: Yes, Your Honour, thank you. Q.
Ms. Danilova, you would agree that the email sets out a living
scenario in Canada, correct?
A. Yes.
Q. And if you look at the line, the entry that
says brought capital $200,000.00, 10% growth, it’s the fourth
line down.
A. I have to refer to English translation, in
your production and Russian version in our production right.
THE COURT: No you can just look at your own, if
that’s...
A. We do not have translation. We have only
Russian. And they have translation in tab 3.
MR. BORNMANN: Q. The Russian version of the
email is behind the English translation – the certified
English translation Ms. Danilova as well.
A. But in our production it is only Russian.
Q. Okay.
A. But there are headers, there is headers of
the email. So we need to combine two productions to understand
what is going on.
Q. The information I want to refer you to Ms.
Danilova is not in the headers. There is a line, it’s the
fourth line of the body of the email that reads, brought
capital $200,000.00 and that refers to a scenario where the
Nikityuks would bring $200,000.00 to Canada, correct?
A. Nikityuk brought capital, it is not an exact,
actually terminology. It’s brought – the purpose of this
email, mostly...
811.
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Q. Ms. Danilova...
A. Yes.
Q. We can be on this document a very long time
if we don’t work together.
A. Oh okay.
Q. I’m asking you a very specific question, the
– does and you can say no but the amount brought capital
$200,000.00 refers to a scenario, in the future where the
Nikityuks would bring $200,000.00 to Canada, correct, the
hypothetical scenario.
A. Hypothetical scenario of $200,000.00 because
it was previous conversations that I would use my share from
the apartment from the whole proceedings and it comes to
$200,000.00 instead of $250,000.00, yes.
Q. Okay and the 10% growth refers to the idea
that there would be 10% interest paid on that brought capital,
correct?
A. Not to – not exactly correct, we mostly –
it’s a calculation how much their life in Canada costs and
then its but yes, it comes to something around 10% of the
capital. That is – that looks like pretty acceptable, like, as
an investment like, first comes their cost of living in Canada
and we count this amount of $24,920.00 that is about 10% of
the capital and the whole – the whole thing become quite
acceptable as an investment – as an investment scenario.
Q. And you would agree that there is – that this
scenario includes, would include money for renting a one-
bedroom apartment, correct?
A. Exactly the point, yes at that point we were
talking about parents living in the same building in Etobicoke
renting an apartment but everything changed, this scenario
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stopped working for everyone. Everything actually changed at
the moment parents agreed to live in a house.
Q. Okay well...
A. Because...
Q. ...let’s talk about what the agreement –
let’s talk about what this document meant when it was sent in
2008 and we have here also food and small things, $500.00,
correct?
A. Everything is, I think, from the point, you
look at it quickly and you would agree with everything, it’s
quite reasonable.
Q. So you would agree the car lease, the car
insurance, the gasoline, the foreign TV, internet.
A. Yeah but a car lease, of course we meant that
the car will be leased in our names, you know, parents
actually they – they received a lot here in Canada, they came
to our perfect credit history that they enjoyed, like car
lease. Just came to my mind as I look at this position as a
car lease, $250.00, it’s based on our perfect – you know, this
is why this is – this very tricky actually thing to look at
each position and that we promise Nikityuks, we couldn’t
promise Valentin that he can lease a car to his name when he
come to Canada for $250.00 a month. He comes to Canada, he
doesn’t have any credit history at all, he – nobody will lease
any car to him but we explained to him that when you come you
will use our perfect credit history, you will be enjoying
driving a new car here, you will get insurance for a car, ask
him, what is his insurance – what is the insurance for the car
he is driving now, ask him. And here as we put car insurance
pretty high, $250.00, it’s high but when he came he enjoyed
our insurance. So it’s – the purpose of this email, you know,
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its nothing said in here but it’s just the demonstration, it’s
a calculation, what does a life in Canada cost but we explain
things that they are not going to be newcomers here as we
were. We came and we work hard to maintain our credit history
so we are going to the branch, as I said yesterday, we were
going to the Innisfil branch across the street and we got an
appointment with the branch manager immediately and we go
to...
THE COURT: Sorry, you’re going way off the
question...
A. Oh sorry.
THE COURT: ...that he asked you and he’s just
talking about this email that was sent to your
mother before they came and now you’re talking
about events that occurred when they were here.
A. I’m sorry, I was actually, this car lease
amount as $300.00 but Valentin separately couldn’t have this
amount.
MR. BORNMANN: Q. Okay well we will come – so
there are conditions that...
A. Conditions.
Q. ...aren’t set out in the email that you
believe were in effect.
A. Beyond to this email and there are so many
conditions.
Q. And we’ve heard of many of these conditions
and we’re going to come back to a number of them but I want to
be very clear with you Ms. Danilova that the Nikityuks viewed
this as a promise, a promise of what they would get in Canada
if they came and I put to you that you thought it was a
promise too, correct?
814.
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A. It is a real reflection of real situation.
Q. No it’s more than that Ms. Danilova, isn’t
it, it’s a promise. You were promising this life in Canada to
the Nikityuks right?
A. Yeah, you know I would say so. What we didn’t
give them from these promises, yes it was a promise.
Q. Well...
A. And point me on any position that they didn’t
have. I insist that we promise and we kept those promises, yes
this is my answer.
Q. Well and I want to be a little more specific,
Ms. Danilova, because there are legal implications to this but
this was a promise that you made the Nikityuks, they bring
this capital, this is what they get, that life, that’s the
life you were promising them, correct?
A. Correct, very correct.
Q. And that life that you promise in the email,
that’s what they wanted, right, and they accepted that promise
right?
A. Yes but we went far beyond those promises
because there is – the paragraph or how – in this about in
this, about buying the house or something like that, we said
that we – you – number five, you could consider house but then
we need to invest something.
Q. Okay let’s get to number five in a second.
Ms. Danilova, you remember you discussed this email on the
telephone with Alla, did you not?
A. After – there were so many conversations, not
just this email, there were many conversations with my mom. I
was explaining how much is that, how much is that, yes. After
that email was kind of familiar before the previous
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conversation. Yes, I had a conversation with my mom before
that email and after.
Q. But you had a conversation with your mom and
she said that she liked the life that you promised in the
email, correct?
A. Correct.
Q. And she said, and I believe you’ve testified
to this previously that with both hands, you said, with both
hands we – they want the life like that, that is what she told
me, correct?
A. Correct.
Q. And I put to you, Ms. Danilova, that you have
not delivered on that promise, you have not provided them with
rent for a one-bedroom apartment, food and small things, car
lease, car insurance, gasoline, phone, TV and internet. You –
you are not – you have not provided them – you have provided
the Nikityuks with these.
A. Or about living in a house, it says in eight,
in three or four years we might be able to afford a house only
because how we saw that at the moment this email was wrote, it
says in number eight, in three or four years we might – in
three or four years but they accepted to live in a house right
away. It says in email, so they got more than we promised
them. We promised them a house in three or four years but they
received the house – to live in a house immediately. And after
they agreed to live in a house, this is actually – stopped
working or whatever I can name it.
Q. Well we will get to the house Ms. Danilova
but...
A. This is a very important thing because it’s
logic right, we are reasonable people here right. And there is
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straight logic, if you go to number eight, in three or four
years we might be able to afford a house, especially in the
current economic situation in Canada improves and investment
will produce more revenue. Then we might think of what kind of
house it could be.
Q. Well before – let’s – before we get to that
paragraph Ms. Danilova, you would agree with me that the email
obviously contains more than just a description of what the
Nikityuks’ life in Canada would be, like an apartment, a car,
et cetera. It also contains options for investing the
Nikityuks brought capital right?
A. But it was up to us how to do this because
you remember the initial agreement was they give money to me
and after they give money to me, literally transferring the
money to my account for – right.
Q. Yeah that...
A. It was the previous agreement.
Q. The verbal agreement, that’s history now,
we’re talking about an email that you sent the Nikityuks
promising a life in Canada and I put to you that this promise
of what life in Canada looks like, it – it also talks about
options for investing the Nikityuks’ money, correct?
A. It saws comment, a comment – the body of
email is here about life in Canada and that comes to 10% of
the – which is very reasonable and doable and everything. This
is the body of the email and below is a comment, comment about
how their money can be invested, right. What comment, it says
a lot of retired people say they – it is kind of, again,
indication or what kind of – general statements it was email
between family members not any agreement or whatever you are
calling or offer how you are calling at this point. It was not
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an offer, if it would be an offer it would be, you know, they
would still be in Russia.
Q. Well Ms. Danilova, you just testified and it
is not the first time you’ve testified that this was a promise
and this was a promise that was accepted by the Nikityuks.
A. You know, I’m very – I am responsible person,
even I promise my mother full support for lifetime. I feel
like it is my responsibility to explain what I mean and what
we were trying to do in this email.
Q. I’m unclear with respect to your testimony,
now perhaps we can turn to your testimony back in 2014 again
and this is the – you remember testifying back in 2014 under
oath.
A. I was testifying under oath, yes, definitely.
Q. And on, if I can direct your attention to
page 122.
A. Yes.
Q. Lines – it starts at line 18.
A. Yes.
Q. And the question, it’s question 507, “okay my
next question is for Svetlana, do you remember discussing this
email on the telephone?” Answer, “Pavel sent this email and
then I had a conversation with my mom and she said they liked
everything in this email, they liked the life we promised them
in this email...”
A. I answered...
Q. ...”and they with both hands, we – they want
the life like that, that is what she told me.”
A. Yeah, I remember, absolutely I – yes I agree
with everything, I remember this testimony, yes.
Q. And the Nikityuks will testify that it was in
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reliance of that promise that they transferred the money to
you, that they trusted you with the money to generate income
for their support.
A. As I said, all you’re asking me, emails and
everything, it doesn’t matter at this point because as I said,
they transfer money to me, they come into Canada to live with
us, they didn’t they are staying Russia. That is plain and
easy. All those it is kind of favour for them to, you know,
it’s really kind of, I would consider this email not an offer
but a favour for them to explain how much cost this, how much
cost that. The agreement was that the are two options, they
keep everything that they have and they stay in Russia, with
their cottages, garages, cars, apartments or the other option,
they sell everything, they transfer money to my account, they
come to me and we are living together here, they are secured
for 10 years of the sponsorship agreement and would be with
the family, we respect each other. When they came in October
2007, I told my mom and we should probably – it doesn’t matter
who was asking who at this point, I told her that we can end
up in three-bedroom apartment, so us living in two-bedroom
apartment, I told her that three-bedroom apartment and us
living together as a family of four with at least two
bathrooms might be an option in Canada for them because people
getting laid off all the time here. The security here is a
very blurry thing.
Q. All right.
A. So people receive their pink slips and let
go. That what I mean by October 2007 and I communicated that
in, verbally to my mom, that was an agreement.
Q. Okay.
A. That we are family, we are – we can manage
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things together.
Q. You would agree though, Ms. Danilova, that
the amount of – the money, we will call it the brought
capital, the brought capital was the product of a lifetime of
work, a lifetime of work by both Alla and Valentin, correct?
A. Absolutely disagree. It was a not a lifetime
of work, this apartment was not a lifetime of work, this
apartment was just given to citizenship as a gift, as I
mentioned before this was the only good thing the Russian
government ever done to the Russian citizens. This is why I’m
actually expressed my frustration that there are – they have
taken it away from me and my daughter, the only good thing the
government ever done to the citizens. It was not their
lifetime of work.
Q. So the Nikityuks will testify that they
considered the investment options set out in this email Ms.
Danilova and Alla Nikityuk will testify that having been given
these options and perhaps I can just turn your attention to
comment number two, so I’m looking at comment number two and
Alla Nikityuk will testify that given the options that they
believed were reflected in these comments, Alla Nikityuk will
testify they made a decision about which option they wanted
and they decided to pick the risk free investment with a 10%
return.
A. It says, as I refer to the body of the email,
it says brought capital, 10% growth, it says and everything
because what calculated here an annual cost of living in
Canada, pretty much compared to 10% of brought capital and
this as secure investment, risk free option, this is in the
reference of what we actually did that it secured with my
husband’s full-time salary that was $87,000.00 at that period
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of time.
Q. And Alla Nikityuk will testify that she told
you not only that this was the life that she wanted in the
email, the life promised to them in the email but they also
wanted the risk free investment option Ms. Danilov.
A. As I said, we offered them risk free
investment options because they always received everything,
despite of the hesitation as you refer the money was lost but
it was not actually lost, it was invested in the business and
so it is different.
Q. But you’ve not provided them with a risk free
investment either did you?
A. We provided them because they didn’t even
notice that kind of difficulties or whatever it is called. So
we had had losses...
Q. The losing the $200,000.00
A. ...in our business but it is again, different
story, I can explain, it actually was not – it was losses in
the business but it was manageable losses.
Q. All right well we can – we’re going to talk
about the trading a little later, I’d like to turn your
attention to paragraph four Ms. Danilova, and I’m going to
read it aloud, comment four, renting a flat in St. Petersburg
is almost the same 4% a year but it comes with a bunch of
problems such as how to send the money to Canada or what will
happen to the flat if you rent it to somebody. Now Ms.
Danilova, we have heard, time and time again from you and your
husband that the Nikityuks had to send you their money, they
had to liquidate everything and sent you their money but here
you would agree, this talks about renting out the flat in St.
Petersburg doesn’t it?
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A. Yeah because that – that apartment would
still exist but any one agreed that this option is impossible
to manage.
Q. But if this...
A. Everything would be not under control, again,
because of the situation in the – it was considered at some
point, it was considered because and then all those
circumstances surrounding renting of the apartment, this would
provide income for Nikityuks partially, right, it would
provide and it would take the pressure from us and this is the
situation we were supposed to manage, again, it would be us
who would be renting out this apartment and at the end
everyone just rejected because it didn’t make sense, it would
be too complicated.
Q. But you would agree that there was no final
decision made about selling the apartment at this time, right?
A. Exactly, no as I said it was still
negotiation until that point that they transferred the money
to my account, until that point they could stay in Russia or
consider any options like rent an apartment, we could
negotiate, maybe we can even come to this agreement, this
renting apartment. You – the timeline, you can follow the
timeline, it’s January – it’s before apartment, yes they sold
that option.
Q. But to be clear, we’re talking about sending
that money to Canada, so we’re talking about the Nikityuks
being over here.
A. Yeah.
Q. And renting out their flat over there.
A. Exactly, exactly my point, it’s ridiculous.
Q. But this was still on the table when this
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email was sent.
A. On the table as in email between family
members, yes. We negotiate, this is the point, we always
negotiated things between each other and then YMCA got
involved, it stopped the family from this process.
Q. Ms. Danilova, I would like us to move to
paragraph six because again the court has heard time and time
again in you and your husband – your and your husband’s
testimony that the Nikityuks didn’t have a choice in the
matter, it was either – it was the ultimatum, you give it to
us or you don’t come but here in comment six, we talk about in
case – in case when you get more than 10% you will have money
for something pleasant like a trip to the seaside for example
or you can reinvent the difference and therefore increase the
capital and accordingly your gain on it, and again, this is up
to you as the money is yours.
A. Exactly, at that point the money was theirs,
this is my point, I keep saying that to you, they had that
option to keep all the money and all their garages, this
cottage houses and apartments.
Q. Well I’m not – I would put to you Ms.
Danilova that that interpretation you’ve just provided of
comment six is not correct.
A. Comment six, they – exactly what I’m telling
you now, that they had more then they moved to different
houses as they had much more than 10% of this $200,000.00,
they had much more and that exactly, you will have money for
something pleasant like a trip, they had so many trips and we
actually finance the trips too, all over Canada, they went to
Ottawa, to Montreal, to Quebec mountains, I have never been
there, honestly, they’ve been everywhere and this is exactly,
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paragraph six.
Q. And let’s move on to paragraph seven, comment
seven and it reads, in this option you are financially
independent, which means that you and we have different money
bags and kitchens. Now your mother will testify that she
understood that to mean, separate money bags means separate
accounts, separate wallets, financially independent from the
Danilovs and she will testify that different kitchens means
different place to live.
A. I’m sorry, you’re missing again, in this
option it says, in this option, it’s in reference to the
option and the option starts from number five, you can
consider house but then we need to invest 20/25 interest as we
together calculated before, such an investment has a higher
risk, so it’s in the reference to the option, to the specific
option, right, not to that just 10%. There is actually – it’s
an ongoing discussion.
Q. But you would agree Ms. Danilova, that at
some point the court will make a decision as to what exactly,
well the many different scenarios and characterizations of the
Nikityuks’ money, a decision will be made and as you pointed
out earlier, the house – a house entered the picture at some
point but in this event as you said, comment five, you’re
still financially independent, this means you have different
money bags and kitchens, correct?
A. But in this option.
Q. The house option.
A. Yes.
Q. Right, thank you.
A. But it’s again, we cannot afford the house
kind of though, it’s not clear that we can afford the house at
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this point but they asked us for a house that we wanted to
sell, we wanted to sell so they changed actually our intention
in regard of this house, we changed this and we went for this
option, we couldn’t consider – we’re not that comfortable with
that option but we went for that to have a better life for
them here and everything went well I would say. Everything was
very, very well here. Our family was a little model for all of
our friends.
Q. Ms. Danilova, you would agree that while on
the one hand, you say, you didn’t sell the house because
Nikityuks asked you not to, on the other hand, you didn’t let
them move out into their own apartment when they wanted to a
number of years later, correct?
A. This is absolutely not correct. You have so
twisted everything. I disagree with them to move social
housing.
Q. So...
A. Because that stopped me from considering all
other options, this is my point, this is why I’m here. I
disagreed to break the law.
Q. And last question about this email Ms.
Danilova, in block letters at the bottom it says, think it
over make up your mind. You would agree with me that the
Nikityuks were going to make a choice based on this email,
correct?
A. Exactly as I told you, like first time today,
I’m sorry, they have two options, they had to make a choice,
yes, stay in Russia or come to Canada. They had two choices,
what they have and first option, we just go through this and
we would be, you know, you honestly think that we would be in
the worst position, two of us, if they didn’t come with their
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money. You honestly think that we needed their money,
$260,000.00.
THE COURT: Well this is not your opportunity to
ask him questions.
A. I’m sorry, I’m sorry.
THE COURT: You can think about those in your
mind but this is his opportunity to ask you
questions so he is not required to answer your
questions.
MR. BORNMANN: Q. I put to you Ms. Danilova that
that is not – that was not the choice the Nikityuks had, the
choice the Nikityuks had before them was set out in the four,
in this document. This document set out the choice the
Nikityuks had and based on the life promised and their choice
to invest risk free for 10%, based on that choice, that
promise you made, they accepted that promise and they sent you
their money, that’s what happened Ms. Danilova.
A. And this is your position, I understand.
Q. And following that telephone conversation you
told us about, where the Nikityuks accepted with both hands,
the life you had promised in the email, it’s true that
Nikityuks in face wire transferred you some, $260,000.00 US,
correct?
A. Yes.
Q. Over – and it was done in four installments,
correct?
A. Yes.
Q. And this went to your account at the TD Bank,
correct?
A. Shared with my husband.
Q. Shared with Pavel and the money was
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transferred from there to your Interactive Brokers account
correct?
A. Not all – not all money. What I need to look
into the payments I do not remember.
Q. Some of it was though, correct?
A. This is correct.
Q. A significant portion of it was transferred.
A. Correct.
Q. Right and this – this money was the brought
capital in the email, correct?
A. Brought capital in email is $200,000.00.
Q. Right.
A. If you – it literally – in the email, brought
capital, it says $200,000.00.
Q. But the sent you $260,000.00 plus US,
correct, that’s what was transferred to you, yes.
A. Around, yes.
Q. Okay and the Nikityuks put – they wrote
present on the wire transfer form in Russia, correct?
A. That document was concealed for over four
years...
Q. You only found out about it.
A. ...I haven’t had a chance to see this
document prior to the commence of the trial.
Q. You didn’t see it until a few months ago,
correct?
A. This is – I actually saw those documents and
other agreements about apartments and everything in their
possession, it was in their files, like documents from Russia,
I have never went through those documents because I received
their money, what would be the point for me to go through
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their Russian documents.
Q. You didn’t think it was a gift when it came
though did you?
A. I knew that this is the money sent to my
account in exchange of my – so I’m providing lifetime care and
lifetime financial support for my mom to cover for all their
living expenses and this money will never intended to return
back, this was an agreement and it sounds – so gift is how my
mom saw that. So she put it as a gift as I now can see. The
money that...
Q. The money wasn’t meant for a gift for you
though was it?
A. Literally, I believe the definition of the
gift is the money that is not supposed to be returned ever and
it’s in compliance with the definition of the money I returned
from my mother, this money will not – was not supposed to be
returned back ever.
Q. The Nikityuks will testify that they – they
wrote present on the wire transfer document in order to avoid
paying fees or taxes. The – now you have the money in Canada,
you have – the Nikityuks transfer you the money and it is true
that you and your husband lost about $200,000.00 of that, of
the money entrusted to you in the stock market, correct?
A. Literally, this is correct but literally I
would say this statement is correct but again, it is more
complex, the money if you are start any business you have to
invest money in the business first and you not expecting any
return on your investment for the next maybe several – for the
next several years, it depends on the business. First you
always invest and then you put your money into work and then
you – the money start working for you, if you are lucky and
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successful in your business.
Q. Well let’s very quickly talk about what this
money did though, so within months of you getting it, right,
it – the majority of it was lost in a matter of days, correct,
it was a very short period of time.
A. This is correct, yes. But it is actually
nothing, we are so open here, we had to, you know, if you even
provided the documents about wire transfer and how this money
actually – how my – it was literally a gift, you probably
didn’t have this kind of information from us because this
money was given to me and it was on my discretion how to use
this money and it was actually, the know how of my business
how to use this money but you intentionally concealed this
evidence. It is a crucial evidence; you would have never
obtained C.P.L. probably if you provided this evidence during
this C.P.L. motion. We insisted you provided this in your
motion, before the C.P.L. motion but judge that we have,
didn’t exam any evidence.
THE COURT: I think you’re commenting on other
legal proceedings and perhaps you’re arguing
with the lawyer as opposed to answering his
questions. Your legal arguments can come from
your counsel at the end of the day.
A. I am sorry but my point here that this wire
transfer slip is a crucial evidence and it’s only because you
didn’t provide this crucial evidence in the beginning of the
proceeding. You were successful at the motion and the judge
ordered to open accounting...
THE COURT: I’m gong to interrupt you there
because you’re going through the same
conversation I just addressed with you and it is
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late in the day and perhaps we should leave a
few questions for Mr. Bornmann to deal with
tomorrow. We can pursue this issue further and
you can think it over, over night but this is
not the opportunity to discuss a previous
judges’ decisions on the material that was
before her at the time. I think his questions
about the stock market will be continued
tomorrow if that’s the theme that he’s dealing
with, Mr. Bornmann, do you have – you can step
down now by the way, until tomorrow, thank you.
Mr. Bornmann, do you have an idea of your time
lines for tomorrow, I don’t know how far along
you are as to where you expect to be or where
you are going.
MR. BORNMANN: The, unfortunately, the timelines
very much contingent on the length of the
answers to the questions Your Honour. Give what
we’ve heard today I would be – I would be
concerned about making any commitments to less
than a day in the usual course, I would
anticipate being finished before lunch Your
Honour. However, at the pace we are proceeding
now I anticipate it would be later afternoon at
the earliest.
THE COURT: Mr. Mae, I will pose the same
question to you, is Mr. Bornmann leaving any
areas that you need to ask about?
MR. MAE: So far he has not covered anything that
I intended to deal with, obviously I don’t know
what is coming and I have my cross-examination
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prepared of course but things may be said
tomorrow, things may have been said today that
which swap some things in my mind so I – I can’t
give any indication yet how long I will be but I
would certainly hope to be finished this week.
THE COURT: All right I have – Ms. Chapman do you
have any other witness for the Plaintiffs’ side.
MS. CHAPMAN: We do, we have a couple other
witnesses that should be very short Your Honour,
very specific issues. I don’t suspect I will be
very long with them but at this point I don’t
think I would be looking to call them until
Monday, maybe Tuesday morning.
THE COURT: All right. I have a chance, or I’ve
been asked to do a pretrial on another case that
is coming up for trial on Friday, I could do it
early in the morning or I could stop this case
early in the afternoon and do it on the Friday
afternoon, I know we’ve already lost a lot of
time and it seems that can’t be avoided and it
seems inevitable for this to go beyond this
sittings so I don’t want to cause a loss of time
for this matter if it could be avoid but does
counsel have any views about whether we could
stop early Friday or whether I should do it in
the morning and start a bit later, this pretrial
may take half an hour to an hour I gather.
MR. MAE: I have no problem with that Your
Honour. I’m in your hands.
THE COURT: Any comments from Mr. Bornmann or Ms.
Chapman as far as, I realize this has been a
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couple of long weeks for the Plaintiffs’ they
have both been giving evidence for a long period
of time and obviously it will continue tomorrow
and beyond that.
MS. CHAPMAN: Yes, and my hope is that we will be
finished with Ms. Danilova by Friday so that I
could maybe have some discussions with them over
the weekend. So my preference would be to have
that pretrial in the afternoon if we could try
and get through the cross-examination, the
balance of it Friday morning but again, whatever
works for your schedule.
THE COURT: I was going to say I’d like to do it
in the afternoon but I don’t want to, I can’t
predict where the cross-examination would be
finished and I’d have to make a commitment to
this other file in advance.
MR. MAE: Your Honour, I’m in your hands and
whatever you decide, if my examination is
interrupted I have no problem with that.
Sometimes of course while you’re doing a cross-
examination you have your list of questions
ahead an interruption is actually quite good
because it gives you the ability to excise your
future questions.
THE COURT: All right well perhaps I will do this
in the afternoon then on Friday and we will
break at 1:00 and with the hope that the cross-
examination is complete or near complete and
obviously Mr. Mae if you can avoid duplication
of issues that are covered already by Mr.
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Bornmann or with the previous witness then that
may help to speed things up.
MR. MAE: That would certainly be the intent and
of course I try to predict that at the outset by
asking whether the evidence will be same to
which I was told is not fair, so I’m forced into
that corner. Your Honour, while I’m on my feet
and my friend mentioned about witnesses, one of
my witnesses who is subject to the witness
exclusion order is Fiona Cascognette or the
YMCA, she has put it in perhaps crass terms is
the person that signs my cheque and she is the
person that I report to, she has purposely not
been in court because of, primarily because of
other commitments but I could have quite easily
had her here as the representative of the YMCA
and I canvassed with my friend during the lunch
time the ability as to whether the witness
exclusion order could be lifted in respect of
Ms. Cascognette because as we’re going over to
another sitting I need to report to somebody,
she’s’ not the highest person at the YMCA but I
can’t keep her out of the loop as it were and
it’s going to put me in an awkward situation for
that six month period.
THE COURT: Is she a witness potentially?
MR. MAE: She will be a witness Your Honour, yes.
THE COURT: Ms. Chapman, any issues there, this
is the instructing individual I guess and also a
potential witness, is there any...
MS. CHAPMAN: There is no issues, I mean I see
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her as being a representative of a party, the
YMCA and so I – as Mr. Mae said, she has every
right to sit here if she was available to do so,
so I don’t have a concern. I think the
discussion really is around, you know, knowing
that it looks like we’re going to be finishing
this sometime on the next sittings to try and
make that time period that we will be off from
the trial easy for everyone to deal with their
clients during that time.
THE COURT: All right so it sounds like there no
concern about an exception to this witness and
since we’re talking about the time period
between now and the next sittings, at any point
in the trial I usually suggest to the parties
they consider a mid trial conference, I haven’t
done that here because we have finished the
evidence that I don’t think it will be that
useful at this point but given that we’re going
to over for a period of six-months I think a
pre-trial or mid-trial I should say with the
lawyers and perhaps the parties and a judge that
can attend to that matter may assist the parties
and if not settling it, perhaps reducing some
aspects of the case when it does continue. So
that’s an option you can discuss to see if your
amenable to that and that would be on a
different day, I’m not trying to suggest to be
squeezed in during the three-weeks but given
that it is going over for six-months, if a half
a day could be provided at some other time that
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is suitable for three counsel, I will leave that
for you to think about. Otherwise things are
just at a stand still for six-months. So with
that in mind we will adjourn until tomorrow
morning and we will break a bit early on Friday.
...WHEREUPON THESE PROCEEDINGS WERE ADJOURNED
835.
Certification
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FORM 2
Certificate of Transcript
Evidence Act, Subsection 5(2)
I, Cathy Knelsen, certify that this document is a true
and accurate transcript of the recording of Danilov v.
Nikityuk in the Superior Court of Justice, held at 75
Mulcaster Street, Barrie, Ontario, taken from Recording
No. 3811-01-20160525-085503 which has been certified in
Form 1.
, 2017 ________________________
Cathy Knelsen, C.C.R.